Lawyers Debate the Legality of Domestic Spying

Last week, USA Today reported that the National Security Agency collected and analyzed Americans' calling records. Lawyers are still battling over whether the administration, or the phone companies, might have violated privacy laws.

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STEVE INSKEEP, host:

Also here in Washington, this is the day that General Michael Hayden is taking questions today about his nomination to another key intelligence job. Hayden was once the head of the National Security Agency, or NSA. Now, he's being asked what he would do if confirmed to head the CIA.

General MICHAEL HAYDEN (Former Director, National Security Agency; Nominee, CIA Director): Fighting this long war on the terrorists, who seek to do us harm, requires that the American people and you, their elected representatives know that the CIA is protecting them effectively, and in a way consistent with the core values of our nation. I did that at NSA.

INSKEEP: Some critics doubt that Hayden really did. The New York Times reported last year that the NSA listened to international phone calls without court permission.

Last week, USA Today reported that the NSA also collected and analyzed American's calling records. Lawyers are still battling over whether the administration or the phone companies might have violated privacy laws.

NPR's Larry Abramson reports.

LARRY ABRAMSON reporting:

For many attorneys, the NSA's warrantless collection of phone traffic is a slam-dunk, a clear violation of decades-old telecom law. New Jersey attorney Bruce Afran is so certain he quickly filed suit against Verizon and other carriers, and expects to haul in some major bucks for subscribers.

Mr. BRUCE AFRAN (Attorney, New Jersey): Under the Telecommunications Act, a telephone owes a minimum of $1000 to every person whose privacy they violate. Now, Verizon has an estimated 50 million subscribers. That leaves a damage potential of at least 50 billion against Verizon.

ABRAMSON: Others aren't so sure, and that's led to a spirited debate. Most start with the Supreme Court, which has ruled that content, what you say on the phone, does enjoy strong protections under the Constitution. But for the numbers you call, according to former federal prosecutor Paul Butler, it's pretty much open season.

Prof. PAUL BUTLER (Former Federal Prosecutor; Professor of Law, George Washington University): Once an individual hands over information to a third party, such as a telephone company or a bank, that that person loses their reasonable expectation of privacy in that data under the Fourth Amendment.

ABRAMSON: But Congress recognized that you can learn a lot about a person by tracking whom they call and email, so lawmakers passed statutes like the Stored Communications Act. It says a phone or Internet service provider may not disclose subscriber information. But there are exceptions, according to attorney and former Justice Department official, David Rifkin.

Mr. DAVID RIFKIN (Former Justice Department Official): And that exception basically enables a provider, like an AT&T or Verizon, "to disclose customer record information," and this is a quote, "to a governmental entity if a provider reasonably believes that an emergency involving immediate danger or serious physical injury to any person justifies disclosure of that information."

ABRAMSON: Rifkin says that 9/11, the deadliest attack in this nation's history, certainly ought to qualify as an emergency. But critics of NSA surveillance say an emergency is a kidnapping, where subscriber information could save a life. A government fishing expedition, they say, doesn't qualify.

The Telecommunications Act has another exception. Companies can give away data that is anonymous. Recent reports in USA Today say providers only supplied phone numbers, not names and addresses. And some commentators say that would provide legal cover for telecom companies. But former federal prosecutor Mark Rasch says it's impossible to make a phone number truly anonymous.

Mr. MARK RASCH (Former Federal Prosecutor): You can only give out anonymous data. And I would certainly argue that if you're giving out my phone number, that's not anonymous. That identifies me.

ABRAMSON: Now, this may sound like an academic debate you'd rather not participate in, but you're likely to hear a lot more about it. In recent years, there's been a big push among law enforcement and intelligence agencies to data mine; to sift through the mountains of information that human beings leave behind in their daily lives and find meaningful patterns; meaningful for preventing crime or terrorism.

But law professor Orin Kerr, of George Washington University, says the law just hasn't kept up with those demands.

Professor ORIN S. KERR (Professor of Law, George Washington University): The government couldn't have gotten a court order to require this kind of disclosure. Court orders will say, hand over a certain set of information. And this is millions of customers' calls. And there's no court order authority that gives the government the power to do it on that kind of scale.

ABRAMSON: Of course, by the time Congress writes new laws, new technologies will likely raise additional wrinkles.

Larry Abramson, NPR News, Washington.

INSKEEP: You're hearing him on MORNING EDITION from NPR News.

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