About a month ago, Wired interviewed a former AT&T technician who claimed that his company was letting the NSA tap its circuits, something that sounded ominous but was kind of vague. (Link thanks to Kevin Drum.) Today USA Today has more on phone companies collaborating with the NSA:
The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.
The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren’t suspected of any crime. This program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.
Last year the president insisted that the NSA was only focusing on international calls. According to USA Today, that’s not entirely true, and the administration is looking at “the communications habits of millions of Americans” making domestic calls. Of course. The man lies. Now granted, gathering info about phone records is different from actually listening into those domestic calls without a warrant, but here’s what the paper has to say about the legal issues:
Q: Is this legal?
A: That will be a matter of debate. In the past, law enforcement officials had to obtain a court warrant before getting calling records. Telecommunications law assesses hefty fines on phone companies that violate customer privacy by divulging such records without warrants. But in discussing the eavesdropping program last December, Bush said he has the authority to order the NSA to get information without court warrants.
In other words, it’s probably against the law, but the president feels like his “wartime powers” take precedence over the law. (Orin Kerr has a more detailed look at the legal issues—he says collecting phone records probably isn’t unconstitutional, but could create “statutory problems under… FISA.”)
But frankly, at this point, figuring out whether this program is “technically” legal or not seems beside the point. The administration has done this sort of thing way too many times—the government, recall, now claims that it can listen in on phone calls without a warrant, detain citizens indefinitely without trial, and have them tortured if it so desires—to earn the benefit of the doubt for even the smallest of steps. And as Atrios says, once you start entering legal gray areas, even with something as apparently “harmless” as looking at phone records, it’s very hard to stop. If the government picks up a “suspect” thanks to information from an illegal wiretapping program, then it can’t use that evidence in court, so it can’t ever bring the suspect to trial, which means it has to keep the person in an extralegal detention center somewhere, presumably forever. And so on. “It’s all one thing. You can’t separate them.” No kidding.