USATODAY.com – NSA has massive database of Americans’ phone calls

Here’s my thoughts about the laws that might apply to the NSA’s collection of call data about American citizens.

Sections 18 USC 2709 and 50 USC 1861 govern collection of transactional data (like phone numbers dialed) and customer records for national security purposes.

Section 2709 says that the FBI can ask for these records if the Director or his designee certifies that they are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities. There’s no judicial review. The process is called a national security letter or NSL. The FBI must report the use of this tactic to Congress.

Section 1861 allows the FBI to get an ex parte judicial order requiring the production of business records for an investigation to obtain foreign intelligence information.

Neither of these procedures does much at all to protect privacy. Basically the FBI can get revealing information about you without having to do much. With the NSLs, glaucoma they don’t even need to ask a judge, there’s no advance oversight whatsoever, and the person targeted doesn’t get any notice.

Though the law provides little to no protection for these records, the NSA may nonetheless have gone too far. We don’t know what the NSA was doing, what legal authority it asserted, why, what happens to the information it collects or how it was used. Still, the NSA’s mission does not include spying on American citizens. These statutes only authorize FBI access to this information.

We’re likely to see a lot of wrangling over what these provisions mean. Proponents of NSA access may argue that the NSA is allowed to access this information, but the FBI must jump through these minimal hoops. Opponents will argue that the FBI must jump through minimal hoops, otherwise the government doesn’t get access to this information at all.

What’s obvious is that the statutes we have are filled with loopholes and our rights are falling through. You can tell an immense amount about someone from the phone numbers they call. Their job, friends, whether they are seeing a doctor or a psychiatrist, their religion, where their children go to school. The fact that this information isn’t better protected by the law is dangerous. The fact that the government is secretly ignoring even the minimal safeguards we have is deadly.

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