Is the NSA's phone call database legal because the President says so

Jacob Sullum
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Posted: May 17, 2006 12:03 AM

When I shop at the Giant, because the bar code on my Bonus Card is no longer readable, I instead use an "alternate ID:" my phone number. When I call my cable company, the service rep can use my phone number to find my records. When I get a new credit card in the mail and call to activate it, the credit card company can tell it's me because of the phone line I'm using.

 According to defenders of the Bush administration's domestic phone call database, which includes regularly updated information about the calls made and received by some 200-million Americans, my grocery store, my cable company, and my credit card company can identify me based on my phone number, but the National Security Agency can't. At least, that's the implication when people say the database is legal because the information in it has been "anonymized" -- i.e., stripped of names and addresses.

 But as USA Today pointed out when it revealed the existence of this program, phone numbers can readily be linked to names and addresses using publicly available information. The claim that there's really nothing personal or private about the phone call records -- which tell the NSA who calls whom, when, and for how long -- is therefore a tenuous basis for defending the legality of data collection that ordinarily requires a court order or the customer's consent.

 Tenuous legal arguments are what we've come to expect from the Bush administration when it defends controversial measures aimed at fighting terrorism, including coercive interrogation techniques, improvised military tribunals and the indefinite detention of unilaterally identified "enemy combatants." The arguments are weak partly because President Bush doesn't really think he needs them. When it comes to terrorism, as Gene Healy and Timothy Lynch observe in a new Cato Institute analysis of the president's constitutional record, "the Bush administration comes perilously close" to Richard Nixon's position: "When the president does it, that means it is not illegal."

 Officials at Qwest, the one major phone company that refused to give the NSA its customers' records, were not persuaded by that argument. They knew they could face hefty penalties under at least two statutes, the Communications Act and the Electronic Communications Privacy Act, if they revealed this information without their customers' consent unless they were legally required to do so.

 The NSA's defenders cite Qwest's refusal, which shows supplying the data was voluntary, as evidence the program is legal. In fact, it indicates just the opposite: Had Qwest been presented with a lawful subpoena or court order demanding the data, it almost certainly would have complied, and if it hadn't the government could have forced it to do so.

 Instead, the NSA resorted to extra-legal methods, pressuring the phone companies to divulge the data through appeals to patriotism, warnings about terrorism and (according to USA Today) threats of lost government contracts. Presumably it took this route because it would have had a hard time convincing the Foreign Intelligence Surveillance Court that every American's phone records were "relevant" to a terrorism investigation, the standard that applies to this kind of information.

 Maybe the NSA should not have to meet that standard when it does automated analyses of such data, provided the information is used only to prevent terrorist attacks and is not shared with other government agencies that might be interested in calls to, say, bookies, hookers or pot dealers. But if so, the Bush administration should ask Congress to change the relevant statutes.

 The White House has sought and obtained a wide variety of legal changes aimed at making it easier to track and thwart terrorists, so the argument that getting congressional approval compromises national security by revealing intelligence methods does not fly. In any event, seeking statutory authority should not be considered optional: Whether he likes it or not, the president is not above the law.