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Legal experts say the divulging of records to the government is prohibited by a 1986 law

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The New York Times
By David G. Savage
Times Staff Writer
May 13, 2006

WASHINGTON — While Capitol Hill debated the issue Friday, many lawyers voiced surprise that three major telephone companies had agreed to make available to the National Security Agency the phone records of tens of millions of Americans.

That's because Congress made it illegal 20 years ago for telephone companies and computer service providers to turn over to the government records showing who their customers had dialed or e-mailed.

"I would not want to be the general counsel of one of these phone companies," said Orin S. Kerr, a law professor at George Washington University and a former Justice Department lawyer who has worked on electronic surveillance.

Kerr was referring to the disclosure Thursday that the Bush administration has been secretly collecting the domestic phone call records of millions of Americans. The government reportedly obtained the records from AT&T, Verizon and BellSouth but was turned down by Denver-based Qwest Communications.

The law doesn't make it illegal for the government to ask for such records. Rather, it makes it illegal for phone companies to divulge them.

The Electronic Communications Privacy Act of 1986 was passed when cellphones and the Internet were emerging as new forms of communication. Section 2702 of the law says the providers of "electronic communications … shall not knowingly divulge a record or other information pertaining to a subscriber or customer … to any government entity."

Companies that violate the law are subject to being sued and paying damages of at least $1,000 per violation per customer.

The first such lawsuit was filed Friday against Verizon in New Jersey.

"It is simply illegal for a telephone company to turn over caller records without some form of legal process, such as a court order or a subpoena," said James X. Dempsey, a lawyer for the Center for Democracy and Technology.

The 1986 law "was Congress' effort to create a comprehensive privacy right and to apply it to all forms of electronic communications," said Dempsey, who at the time of the law's passage was a counsel to the House Judiciary Committee.

Both Kerr and Dempsey said it was hard to analyze the legal situation since neither the Bush administration nor the phone companies had explained the legal basis for divulging the records. But under the law as written, "it looks like the disclosure is not allowed," Kerr said.

The Supreme Court and Congress have taken turns defining the privacy rights of Americans involving phone calls.

The 4th Amendment forbids "unreasonable searches and seizures" by the government. But until 1967, a search was generally limited to the police entering a home.

That year, the court said a government agent listening to a private phone call was the equivalent of a search. That ruling, in Katz vs. United States, required police and federal agents thereafter to obtain a search warrant from a judge before they wiretapped a phone.

Still, phone records are not the same as phone conversations, and the high court refused to extend the privacy protections of the 4th Amendment to a list of dialed phone numbers.

"We doubt that people in general entertain any actual expectation of privacy in the [phone] number they dial," the court said in the 1979 case of Smith vs. Maryland. This ruling gave the police freedom to obtain phone records without a warrant.

To close that loophole, Congress enacted the Electronic Communications Privacy Act, forbidding the phone companies to divulge phone records.

The law includes several exceptions. For example, phone records may be disclosed "with the lawful consent of the customer." Another exception involves "any emergency involving danger of death or serious physical injury." In such a situation, the "provider in good faith" may give the requested phone records to a government official.

Bush administration officials may have argued they faced such a national emergency after the Sept. 11 attacks in 2001. Many people feared another terrorist attack within the United States, and officials were anxious to quickly gather information.

"You can see how they could say that in the immediate aftermath of 9/11," Dempsey said. "I don't understand how that could serve as a 'good faith' defense for years afterward."

USA Today, which disclosed the program this week, reported that Qwest had refused to turn over its phone records because it believed it would be illegal. Qwest urged the NSA to get a court order, but the agency refused, the newspaper reported.

In a statement Friday, the attorney for former Qwest Chief Executive Joseph Nacchio said the government approached the company in the fall of 2001 seeking access to the phone records of Qwest customers, with neither a warrant nor approval from a special court established to handle surveillance matters.

"Mr. Nacchio concluded that these requests violated the privacy requirements of the Telecommunications Act," attorney Herbert J. Stern said.

"If they did not have a court order, this is clearly illegal," said Kate Martin, a lawyer and director of the Center for National Security Studies in Washington.

A separate provision of the law says the FBI director may demand the phone "billing records of a person" if the director "certifies in writing" that these records are "relevant to an authorized investigation to protect against international terrorism."

Some lawyers speculate the administration may have citied this provision in Section 2709 in seeking the phone records. But Martin noted it applied only to the FBI, not the NSA. Moreover, it focuses on those connected to a criminal investigation.

"How would that apply to tens of millions of telephone records?" Martin asked. "The NSA is more like a vacuum cleaner than an investigative agency."

In December, President Bush confirmed he had signed a secret order that authorized the NSA to intercept international phone calls coming into the U.S. from suspected terrorists abroad. Americans should not be troubled by this eavesdropping, he said, because the program was focused strictly on people with "clear links" to foreign terrorists.

On Thursday, the president and Air Force Gen. Michael V. Hayden, the former NSA director and nominee to head the CIA, said the newly revealed sweep of phone records was "lawful," but neither described the program's reach or the legal rationale. Bush said the government was "not mining or trolling through the personal lives of millions of innocent Americans." The NSA was said to be interested in patterns of phone calls that might point to suspicious people.

Kenneth C. Bass III, a Washington lawyer and expert on the Foreign Intelligence Surveillance Act, said that a general search of this sort conflicted with the 4th Amendment. It arose from the experience of the American colonists having their homes, ships and warehouses searched by British troops.

Ever since, American law has frowned upon open-ended searches that are not triggered by some suspicious act.

The 1978 Foreign Intelligence Surveillance Act established a secret court that may issue wiretap warrants when the government has evidence that a person is working for a "foreign power" or is involved in terrorism.

Some lawmakers have sharply criticized the NSA program, and Sen. Arlen Specter, (R-Pa.), Senate Judiciary Committee chairman, has promised hearings.

But it was unclear Friday that the disclosure of the data collection program would hurt Hayden's nomination to head the CIA. Hayden continued to meet with senators, including Democratic leader Harry Reid of Nevada, to solicit support. Hayden's first confirmation hearing is scheduled before the Senate Intelligence Committee on Thursday.

Hayden appeared to have secured the support of two independent Republican senators, Chuck Hagel of Nebraska and Susan Collins of Maine.

Times staff writer Greg Miller and the Associated Press contributed to this report.

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