“Consent” appears to be the right wing’s favorite defense for the apparent decision by major phone companies to hand over millions of customers’ calling records to the National Security Agency. As reported in the Washington Post, “the Bush administration has argued that a company can turn over its entire database of customer records — and even the stored content of calls and e-mails — because customers ‘have consented to that’ when they establish accounts.”
1. The telco language terms of service provide no basis for “consent.” The terms of service of AT&T, BellSouth, and Verizon highlight that they will turn over records in response to court orders or subpoenas, which did not exist, according to USA Today. Verizon also mentions “exigent circumstances” – a very slim reed on which to conclude that customers gave actual consent to having all their phone calls disclosed to the government.
2. Consent is for a specific action, not a blanket permission. As explained by former prosecutor and law professor Orin Kerr, cases under the wiretap laws require that “the user actually agreed to the action, either explicitly or implicitly based on the user’s decision to proceed in light of actual notice.” You give consent for a call when you have actual notice. That’s why we always hear that “this call may be monitored for quality assurance purposes.”
3. You can’t consent to a secret program. Under this “consent” defense, a federal court would have to hold that even the people outraged by the NSA program have given their individual consent to it. That’s a legal fiction we don’t think courts will accept. It’s doubtful we can give our consent to any secret program.
4. It would mean you consented to have the contents your calls handed over to the government. USA Today reported that the phone companies turned over call detail information – which phone numbers called which other phone numbers. The consent provision for call detail information [18 USC § 2702 and 2703] is essentially the same as the consent provision for wiretaps of the full contents of calls and e-mails [Sec. 2511(c)]. When you signed up for phone service, did you and all your friends consent to have the government listen to all your calls? That would make a mockery of decades of wiretap law.
– Peter Swire