Is what the NSA did illegal Re: phone records

[johnnie]

I am just trying ot figure all this out so don't freak out on me. From what I understand, the NSA wanted our phone records and some of the phone companies gave them up without a warrant. So far, this is *not* about anyone tapping our phones, it is about the NSA wanting to create a database of who and when we talk to people on our phones. Is that correct?

One point is that the phone lines are typically owned by a company and we pay them to use the service they provide. This in itself does not guarantee complete privacy once we pick up the phone and dial out to another line. I am trying to see if I can find a contract that I have ever signed with a phone company that says I am protected from anyone ever knowing who I call and when I call them.

I am not saying that what the NSA is doing is something I agree with, but I see a lot of people here screaming about the NSA spying on us and at this point I think it's the phone companies that have done more wrong than the NSA. I don't believe that time and resources should be used to create worthless databases on some weak excuse that it is to keep America safe from terrorism, but I also don't want to make a case against the NSA for illegal activity if what they did was in the boundaries of the law.

I am just posting this to maybe get a better understanding of what you all think about this and what the implications are so far on what we know. As I said, I'm not sticking up for the NSA and at this point I put more blame on the phone companies for betraying the trust of their customers. I DO NOT think that the government should be spying on the American citizens and lying about it, nor do I want to have my rights pissed on by a bunch of political criminals.

So, what do you think?

[HiFructosePronSyrup]

1. Last I checked, treason was illegal, yes.

[johnnie]

2. Where is the treason

Regarding the phone records?

[NorCalDem]

11. Violation of the 4th Amendment

Any collection of data without a warrant is illegal, and the fact that the NSA specifically avoided FISA screams that they knew it as well. The whole damn program is illegal, with both sides (i.e. NSA and phone companies) breaking the law. Yeah Democracy! :D

[johnnie]

12. But they got the information from the people who own it

We expect the phone company to keep our phone calls private, but they didn't. They are monitoring the service you are getting from them and when asked for the records of it they handed it over.

I'm not trying to be a pain here, I am maybe just not looking at this right.

[helderheid]

25. It's a violation of privacy from the telecommunications act, right?

[aikoaiko]

3. prob not, they asked for records, and the telecoms gave it willingly.

[Coexist]

4. Yes - it was illegal (although this will be argued for some time)

the 4th Amendment states:

"FOURTH AMENDMENT - 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

the FISA courts and laws were enacted to deal with the growing technology of Electronic surveillance:

http://www4.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001802----000-.html
§ 1802. Electronic surveillance authorization without court order; certification by Attorney General; reports to Congressional committees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of court


Release date: 2005-03-17

(a)
(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—
(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and
if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.
(2) An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General’s certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 1808 (a) of this title.
(3) The Attorney General shall immediately transmit under seal to the court established under section 1803 (a) of this title a copy of his certification. Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation with the Director of Central Intelligence, and shall remain sealed unless—
(A) an application for a court order with respect to the surveillance is made under sections 1801 (h)(4) and 1804 of this title; or
(B) the certification is necessary to determine the legality of the surveillance under section 1806 (f) of this title.

...and this is about YOUR rights from the FCC:
http://www.fcc.gov/cgb/consumerfacts/phoneaboutyou.html

What Can Your Telephone Company Do With This Information?

Both a law passed by Congress and Federal Communications Commission rules impose a general duty on telephone companies to protect the confidentiality of your customer information. Telephone companies may use, disclose, or permit access to your customer information in these circumstances: (1) as required by law; (2) with your approval; and (3) in providing the service from which the customer information is derived.

[johnnie]

7. But what is "electronic surveillance"?

Does that cover records of actions that are kept by a third party?

[Coexist]

8. the phone records fall under the third, FCC section on your rights

[flyarm]

5. you do not need a contract from your phone company saying anything

there are federal laws that protect you from your government spying on you..
there are federal laws, constitutional laws that protect you from the phone companies giving out your personal information to anyone .. especially the government..its called warrants ...there are standards and laws that protect you from this kind of bullshit...

and if i was one of these phone company ceo's i would be sweating right now..because the lawsuits are going to overwhelm them and possibly break their backs..and they should!

[johnnie]

10. So what you are saying is

The phone companies should be held liable?

[flyarm]

17. absolutely..see this post>>>>>>>>>>>>>

THANKS KPETE!!

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=364x1161184



Telcos Could Be Liable For Billions-For Illegally Turning Over Ph Records
Telcos Could Be Liable For Tens of Billions of Dollars For Illegally Turning Over Phone Records

This morning, USA Today reported that three telecommunications companies – AT&T, Verizon and BellSouth – provided “phone call records of tens of millions of Americans” to the National Security Agency. Such conduct appears to be illegal and could make the telco firms liable for tens of billions of dollars. Here’s why:


1. It violates the Stored Communications Act. The Stored Communications Act, Section 2703(c), provides exactly five exceptions that would permit a phone company to disclose to the government the list of calls to or from a subscriber: (i) a warrant; (ii) a court order; (iii) the customer’s consent; (iv) for telemarketing enforcement; or (v) by “administrative subpoena.” The first four clearly don’t apply. As for administrative subpoenas, where a government agency asks for records without court approval, there is a simple answer – the NSA has no administrative subpoena authority, and it is the NSA that reportedly got the phone records.

2. The penalty for violating the Stored Communications Act is $1000 per individual violation. Section 2707 of the Stored Communications Act gives a private right of action to any telephone customer “aggrieved by any violation.” If the phone company acted with a “knowing or intentional state of mind,” then the customer wins actual harm, attorney’s fees, and “in no case shall a person entitled to recover receive less than the sum of $1,000.”

(The phone companies might say they didn’t “know” they were violating the law. But USA Today reports that Qwest’s lawyers knew about the legal risks, which are bright and clear in the statute book.)

3. The Foreign Intelligence Surveillance Act doesn’t get the telcos off the hook. According to USA Today, the NSA did not go to the FISA court to get a court order. And Qwest is quoted as saying that the Attorney General would not certify that the request was lawful under FISA. So FISA provides no defense for the phone companies, either.

In other words, for every 1 million Americans whose records were turned over to NSA, the telcos could be liable for $1 billion in penalties, plus attorneys fees. You do the math.

– Peter Swire and Judd Legum

http://thinkprogress.org/2006/05/11/telcos-liable /
http://www.cybercrime.gov/ECPA2701_2712.htm
http://www.cybercrime.gov/ECPA2701_2712.htm
http://www.usatoday.com/news/washington/2006-05-10-nsa_...

[johnnie]

21. Yes

That's what I said in my OP.

[flyarm]

23. look this administration went to ashcroft and comey and asked for

warrants and were turned down by 2 attorney generals..so obviously this was illegal..get Comey and Ashcroft under oath ..asap..before they suicide themselves!

[Kingshakabobo]

6. When information is handed over to the government, the standard

of protection is higher than if they handed over information to an "affiliate."

[Kagemusha]

9. It is against the law. The government will claim it is above the law.

At least, when national security is threatened, which is um, all of the time, 24/7/365 plus a day on leap years. There is no time when there are zero threats to national security, ever

[cantstandbush]

13. Privacy Act: The government shall maintain no secret records on

individuals. You have a right to know what is being maintained BY THE GOVERNMENT on you, the purpose for the records (in a system of records), how the records will be used, and rights or benefits etc.. This government obeys no laws. I believe an individual is entitled to know to whom the records were disclosed.

http://www.usdoj.gov/foia/privstat.htm

[johnnie]

14. Thanks, I just was reading that too

Although I don't know yet on how that would hold up. They didn't tell us they were gathering records, but then again who asked?

[Cocoa]

15. Companies CANNOT give out phone records

http://thinkprogress.org/2006/05/11/telcos-liable/

1. It violates the Stored Communications Act. The Stored Communications Act, Section 2703(c), provides exactly five exceptions that would permit a phone company to disclose to the government the list of calls to or from a subscriber: (i) a warrant; (ii) a court order; (iii) the customer’s consent; (iv) for telemarketing enforcement; or (v) by “administrative subpoena.” The first four clearly don’t apply. As for administrative subpoenas, where a government agency asks for records without court approval, there is a simple answer – the NSA has no administrative subpoena authority, and it is the NSA that reportedly got the phone records.

2. The penalty for violating the Stored Communications Act is $1000 per individual violation. Section 2707 of the Stored Communications Act gives a private right of action to any telephone customer “aggrieved by any violation.” If the phone company acted with a “knowing or intentional state of mind,” then the customer wins actual harm, attorney’s fees, and “in no case shall a person entitled to recover receive less than the sum of $1,000.”

(The phone companies might say they didn’t “know” they were violating the law. But USA Today reports that Qwest’s lawyers knew about the legal risks, which are bright and clear in the statute book.)

3. The Foreign Intelligence Surveillance Act doesn’t get the telcos off the hook. According to USA Today, the NSA did not go to the FISA court to get a court order. And Qwest is quoted as saying that the Attorney General would not certify that the request was lawful under FISA. So FISA provides no defense for the phone companies, either.

[johnnie]

16. And?

That's what I said, it is the phone companies that were wrong here.

[magellan]

19. The telcos are directly liable

The government is liable as well, for failing to provide warrants for the information they requested from the telcos.

The thing you should really think about in all this is are you comfortable with the idea of the government getting information about you from whoever they want without following the law and without oversight into their activities? Anyone that fails to bother either isn't American or doesn't have a good appreciation of the guiding principles of America.

That isn't an attack, just an observation. It seems a lot of Americans don't have a good grasp of what their rights are and more important, why they're protected by the Constitution. That is what's rotting this country from the core, IMHO -- the public complacency and lack of knowledge. If you don't know what you have and why, you aren't very likely to miss it till it's gone...and then it's TOO LATE.

[johnnie]

20. No, I don't like the government getting information

But here is the problem that I have noticed. There are threads upon threads screaming about the NSA breaking the law and that tens of thousands of Americans phones were tapped. I haven't read about any phones being tapped (regarding this latest situation) and I think that too many people are jumping the gun here.

This isn't an attack either, but it seems like a lot of American don't have a grasp on what their rights are and more importantly, why they're protected by the Constitution. People are screaming about "Search and seizure" but are unaware that through the years they have made certain laws in regards to the 4th Amendment.

All I was asking is if anyone knows for sure if what happened is illegal or are people just saying it is illegal because they don't like it?

[magellan]

24. There hasn't been a proper investigation, I'm sure you know this

But the legality of collecting call data on millions of Americans from telcos without a warrant is highly suspect. And it isn't just that. The very fact that the NSA had to stay away from protected public communications before 9/11, and is now doing what it likes with only "executive authorization" -- Bush** didn't even attempt to have the FISA law modified in the Patriot Act -- should be enough to tell you what you want to know.

Or maybe not.

[Cocoa]

22. I see what you're saying now, but...

but I'd be surprised if what the NSA did was legal.

For example, what about threatening Qwest when they refused? I can't imagine that's legal.

[johnnie]

26. Oh, I didn't hear about the threat

I am just making sure I understand what this is all about. Seriously, I think they did something illegal somewhere, but I want to know the facts and not react too quickly.

[Justice Is Comin]

18. The dots are

connected all the way back to 2001. There was always a claim of monitoring only international originated calls. And even for that there were FISA requirements which were ignored.

But there is absolutely, unequivocally and unquestionably NO authority for calls to be monitored, mined, data based--whatever the hell you want to call it--within the United States. None!

That's why you heard Bush flatulating that it was only calls from overseas coming into the United States. He didn't know this blockbuster was coming also.

And brace yourself because I think the next bombshell is going to be that he was doing it BEFORE nine eleven. He's in quicksand up to his ears right now.