Telco Liability: Falkenrath Gets It Wrong

On Thursday, ThinkProgress argued that the telcos could be liable for tens of billions of dollars for turning over phone records to the government in violation of the Stored Communications Act. In this morning’s New York Times, law professor Orrin Kerr agrees:

Orin Kerr, a former federal prosecutor and assistant professor at George Washington University, said his reading of the relevant statutes put the phone companies at risk for at least $1,000 per person whose records they disclosed without a court order.

“This is not a happy day for the general counsels” of the phone companies, he said. “If you have a class action involving 10 million Americans, that’s 10 million times $1,000 “” that’s 10 billion.”

In today’s Washington Post, Richard A. Falkenrath – former deputy assistant to President Bush – takes the opposite view. Here’s Falkenrath’s argument:

The three companies reported to have supplied telephone records to the NSA also appear to be acting lawfully”¦.[T]he Electronic Communications Privacy Act of 1986 explicitly permits telecommunications companies to provide customer records to the government if the government asks for them.

Actually, that’s false. The relevant portion of the Electronic Communications Privacy Act – known as the Stored Communications Act – explicitly prohibits voluntary or required disclosure of phone records to the government with several limited exceptions. (See 18 U.S.C. 2702-03.) As we explained here and here none of those exceptions apply.

It’s clear from his column that Falkenrath is obviously a huge fan of Michael Hayden, the administration, and the NSA program. That’s fine, but it doesn’t change the law or the telcos’ potential liability for turning over the phone records of tens of millions of Americans.