NSA, Can you hear me now?

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This story from USA Today is shocking, yet it’s not surprising at the same time. Didn’t we know something like this was coming eventually?

Big props to Qwest Communications for not buckling under the pressure from the NSA to hand over the phone records of their customers without a warrant. This section of the story is mind blowing:

Trying to put pressure on Qwest, NSA representatives pointedly told Qwest that it was the lone holdout among the big telecommunications companies. It also tried appealing to Qwest’s patriotic side: In one meeting, an NSA representative suggested that Qwest’s refusal to contribute to the database could compromise national security, one person recalled.

In addition, the agency suggested that Qwest’s foot-dragging might affect its ability to get future classified work with the government. Like other big telecommunications companies, Qwest already had classified contracts and hoped to get more.

Unable to get comfortable with what NSA was proposing, Qwest’s lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.

The NSA’s explanation did little to satisfy Qwest’s lawyers. “They told (Qwest) they didn’t want to do that because FISA might not agree with them,” one person recalled. For similar reasons, this person said, NSA rejected Qwest’s suggestion of getting a letter of authorization from the U.S. attorney general’s office. A second person confirmed this version of events.

So in short, the NSA and the Bush administration think it’s perfectly ok to seek the private phone records of American citizens without a warrant because the court “might not agree” with their reasoning for a warrant. Wow!! It’s granted that some of the details in this story may be inaccurate but the fact that we are seeing our president, who is at a 31% approval rating and not wanting to touch this story with a ten-foot pole, is on t.v. defending this practice of the NSA tells me this story has some serious traction.

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9 thoughts on “NSA, Can you hear me now?

  1. Actually this is not against the law and has been done in the past. What is against the law is if they had listened in on the actual conversations.

  2. Mark,

    FISA defines the “content” of electronic surveillance here, 1801(n):

    (n) ”Contents”, when used with respect to a communication,
    includes any information concerning the identity of the parties
    to such communication
    or the existence, substance, purport, or
    meaning of that communication.

    According to FISA, even the names of the callers who are being monitored fall under the umbrella of “content” and, in turn, require a warrant. Whether the NSA actually listens in to the calls or not doesn’t really matter in this respect. The mere knowledge of the identities of the callers, as we’ve seen above, is grounds for the need of a warrant from the FISA Court. If we are going to attempt to adhere to the law here then, I’m sorry to say, you are mistaken.

  3. That almost works but not quite since we have to consider 18 USC 3121 et seq and Section 214 of the Patriot Act.

    Even Andrew McCarthy, a loyal defender of Bush’s surveillance program, said the following before he learned that the President had ordered eavesdropping on Americans without court approval:

    Why such extensive access with virtually no court supervision? Because the items at issue here are primarily activity records voluntarily left in the hands of third parties. As the Supreme Court has long held, such items simply do not involve legitimate expectations of privacy. See, e.g., Smith v. Maryland, 442 U.S. 735, 744 (1979).

    This renders them categorically different from the private information at issue in the context of search warrants or eavesdropping, in which the court is properly imposed as a bulwark, requiring a demonstration of cause before government may pierce established constitutional safeguards.

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