Comey and the Phone Companies' Role in the NSA Program (by Shayana Kadidal at HuffPost) [View All]

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Shayana Kadidal


05.20.2007
Comey and the Phone Companies' Role in the NSA Program (2 comments )

On Friday, professional administration apologist Douglas Kmiec published an op-ed in the Washington Post in which he criticizes former Deputy AG James Comey's testimony as "staggeringly histrionic," claims the media's analogies between the threatened mass resignations (of Comey, Ashcroft and FBI Director Mueller) to Watergate's Friday Night Massacre are absurd, and then (correctly) notes that the president, not the Attorney General or anyone else in DOJ, has the last word on exactly which interpretation of federal laws the rest of the executive branch will follow.

Over at the Balkinization blog, Marty Lederman of Georgetown Law School breaks down Professor Kmiec's op-ed, and zeros in on one of the most interesting issues that Kmiec (perhaps inadvertently) highlights: "Why did the president seek the AG's signature, anyway, if it wasn't required by statute and the president could have the final word?"

For my money, the most intriguing answer Professor Lederman provides is that "the signature might have been necessary to induce the requisite private actors -- telecom companies in particular -- to continue to go along with the program." (Orin Kerr, a more conservative expert on surveillance issues, concurs.)

Here's how that would work: the Wiretap Act contains a section, 18 USC 2511(2)(a)(ii), that allows telecom providers and other private parties (e.g. your landlord) to help the government carry out electronic surveillance if those private parties have been "provided with ... a court order" or "a certification in writing by ... the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required."

...(snip)...

Let's just be clear what this means. Congress can pass all the privacy legislation it wants to keep your phone calling records, banking records, stored emails, etc. private. But if some private telecom company decides that terrorist attacks are "expected" and that turning over all this statutorily-protected information to the executive "may" be helpful to law enforcement, the telephone company's First Amendment rights to do that trump Congress' power to preserve your privacy. No matter what privacy laws Congress tries to pass, the First Amendment voids them all if the phone company decides it wants to ignore them.

Imagine this: an out-of-control, lawless executive starts a rampage of privacy violations by getting information on innocent citizens' phone calls, emails, and internet searches from private telecom companies. Congress overwhelmingly passes a bill to curtail the abuses by regulating those private parties, overriding the president's veto in the process. Isn't this a normal use of the political process? According to Verizon, no. Your elected officials don't get to decide. Your telecom company gets to decide. ......(more)

The complete piece is at: http://www.huffingtonpost.com/shayana-kadidal/comey-and-the-phone-compa_b_48928.html