Attorney General Alberto Gonzales won’t confirm that the federal government collected the phone records of millions of Americans, as reported on May 11 in USA Today. But yesterday, Gonzales claimed that doing so was perfectly legal. From the Washington Post:
Attorney General Alberto R. Gonzales said yesterday that the government can obtain domestic telephone records without court approval under a 1979 Supreme Court ruling that authorized the collection of business records”¦Gonzales told reporters that, under the Smith v. Maryland ruling, “those kinds of records do not enjoy Fourth Amendment protection. There is no reasonable expectation of privacy in those kinds of records.”
This is a classic case of misdirection. The issue isn’t simply whether or not collecting domestic phone records is constitutional. The issue is whether it’s legal. If the USA Today story is accurate, the NSA program appears to be illegal, not because it violates the fourth amendment, but because it violates two statutes.
Significantly, Smith v. Maryland considers activities that occurred in 1976. Both of the statutes that prohibit the activity described by USA Today were enacted after that date:
1. The Stored Communications Act of 1986 (SCA). The law prohibits the telecommunications companies from handing over telephone records to the government without a court order. (18 USC 2702-3.) There are several exceptions, none of which apply in this circumstance. The SCA was enacted in response to Smith v. Maryland.
2. The Foreign Intelligence Surveillance Act of 1978 (FISA). The law allows this kind of domestic surveillance in two circumstances: 1) the government obtains a warrant from the Foreign Intelligence Surveillance Court, or 2) the government obtains a certification from the Attorney General that the program is legal under FISA. According to the USA Today article, neither action was taken.
The Washington Post story on Gonzales’ comments, however, doesn’t mention the Stored Communications Act or the Foreign Intelligence Surveillance Act. For that matter, it doesn’t include any legal analysis from anyone other than Gonzales.