Posted by Orin Kerr:
Did the NSA Call Records Program Cause the Major Controversy Within DOJ, and If
so, What Does It Tell Us About the Legal Issues?:
http://volokh.com/archives/archive_2008_12_14-2008_12_20.shtml#1229325134
Back in 2005 to 2006, the press reported on two major warrantless
surveillance programs. The first became known as the Terrorist
Surveillance Program, and involved real-time wiretapping of the
contents of telephone and Internet communications that happened to be
routed through the U.S. even though at least one of the participants
(and most often, both) were actually located outside the U.S. The
second program was sometimes referred to as the NSA Call Records
program, and it involved the disclosure of non-content "metadata"
about calls and e-mails from U.S. service providers to the NSA.
Ever since the news leaked about the now-infamous Gonzales and Card
visit to then-AG Ashcroft at the GW Hospital, it has been assumed that
the episode and the threatened resignations that followed concerned
the TSP, not the call records program. But now [1]Newsweek is
reporting that "the program" at issue in that case was actually the
NSA Call Records program, not the TSP:
Two knowledgeable sources tell NEWSWEEK that the clash erupted
over a part of Bush's espionage program that had nothing to do with
the wiretapping of individual suspects. Rather, Comey and others
threatened to resign because of the vast and indiscriminate
collection of communications data. These sources, who asked not to
be named discussing intelligence matters, describe a system in
which the National Security Agency, with cooperation from some of
the country's largest telecommunications companies, was able to
vacuum up the records of calls and e-mails of tens of millions of
average Americans between September 2001 and March 2004. The
program's classified code name was "Stellar Wind," though when
officials needed to refer to it on the phone, they called it "SW."
(The NSA says it has "no information or comment"; a Justice
Department spokesman also declined to comment.)
The NSA's powerful computers became vast storehouses of
"metadata." They collected the telephone numbers of callers and
recipients in the United States, and the time and duration of the
calls. They also collected and stored the subject lines of e-mails,
the times they were sent, and the addresses of both senders and
recipients. By one estimate, the amount of data the NSA could suck
up in close to real time was equivalent to one quarter of the
entire Encyclopaedia Britannica per second. (The actual content of
calls and e-mails was not being monitored as part of this aspect of
the program, the sources say.) All this metadata was then sifted by
the NSA, using complex algorithms to detect patterns and links that
might indicate terrorist activity.
. . . By 2003, Yoo had moved on, and a new head of the OLC, Jack
Goldsmith, began reviewing his work. Goldsmith found Yoo's legal
opinions justifying the program flawed. His reasons are based on a
mind-numbingly complex area of federal law, but the basic analysis
comes down to this: the systematic collection and digital
transmission of huge amounts of telephone and e-mail data by the
government constitutes "electronic surveillance" under the Foreign
Intelligence Surveillance Act, the exclusive law governing domestic
spying in national-security cases. For such activities, FISA
requires a court-approved warrant. Therefore, the program was
illegal.
Back when we were assuming that the TSP was the real issue, my best
guess was that Goldsmith had rejected the Article II theory for the
TSP and instead was only willing to allow a narrower program under the
rationale that the AUMF justified the program in narrower form. But if
the Call Records program was the real issue, then it may be time to
revise that a bit.
In particular, it sounds like Yoo wrote a really sloppy memo that
the NSA Call Records program did not constitute "electronic
surveillance" under 50 U.S.C. 1801(f). 50 U.S.C.1801(f)(2) describes
as "electronic surveillance" (for which a warrant is ordinarily
required) as "the acquisition by an electronic, mechanical, or other
surveillance device of the contents of any wire communication to or
from a person in the United States, without the consent of any party
thereto, if such acquisition occurs in the United States." If you were
a really sloppy lawyer, and you wanted to say that the NSA Call
Records program was legal, you could probably write a memo concluding
that the program didn't implicate FISA's prohbition on warrantless
wiretapping because it didn't intercept any "contents." As described
in the Newsweek story, the evidence collection was limited to e-mail
headers and non-content phone records. Therefore no "contents."
But if you were a decent lawyer, you would realize that these
arguments are pretty bad. First, subject lines of e-mails are pretty
clearly contents rather non-content information. Second, and more
importantly, the definition of "contents" in FISA is different than
the more intuitive distinction used in the criminal context of the
Wiretap Act. 18 U.S.C. 1801(n) provides:
�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.
Note that in the national security setting, "contents" includes "any
information concerning the identities of the parties to such
communication." Although there aren't any cases on this, that I know
of, "any information" is pretty broad. Presumably that includes
information such as e-mail addresses that would be non-content
information in the criminal law setting.
In light of this, it seems that the major dispute at the Ashcroft
hospital visit was about whether the NSA Call Records program was
collecting "contents" for purposes of FISA (and perhaps only in the
background the issue of whether Article II trumped FISA). Comey and
Goldsmith might have then insisted on changes in the program to make
it a more plausible reading of the FISA statute: subject lines of
e-mails would be out, for example, and perhaps actual e-mail addresses
as well. The narrower program would then not trigger FISA's
prohibition on "electronic surveillance," and might have instead
operated under [2]the Pen Register statute (either its exceptions or
one universal [3]pen-trap order). Only then could the Attorney General
certify that the program was legal. That's my speculation, at least.
References
1. http://www.newsweek.com/id/174602
2. http://www4.law.cornell.edu/uscode/18/usc_sup_01_18_10_II_20_206.html
3. http://www4.law.cornell.edu/uscode/50/usc_sec_50_00001842----000-.html
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