Bush Responds to USA Today Story Regarding NSA Database of Phone Calls

May 11, 2006. President Bush spoke briefly at the White House to defend the surveillance activities of the National Security Agency (NSA). See, transcript.

He said that "Today there are new claims about other ways we are tracking down al Qaeda to prevent attacks on America." He was speaking of an article published on May 11, 2006 by the USA Today, a daily newspaper, in both its paper edition, and in its web site.

The USA Today article, titled "NSA has massive database of Americans' phone calls", states that "The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY."

The article adds that "Customers' names, street addresses and other personal information are not being handed over as part of NSA's domestic program, the sources said. But the phone numbers the NSA collects can easily be cross-checked with other databases to obtain that information."

Bush responded. "I want to make some important points about what the government is doing and what the government is not doing. First, our international activities strictly target al Qaeda and their known affiliates. Al Qaeda is our enemy, and we want to know their plans. Second, the government does not listen to domestic phone calls without court approval. Third, the intelligence activities I authorized are lawful and have been briefed to appropriate members of Congress, both Republican and Democrat. Fourth, the privacy of ordinary Americans is fiercely protected in all our activities."

Bush continued that "We're not mining or trolling through the personal lives of millions of innocent Americans. Our efforts are focused on links to al Qaeda and their known affiliates. So far we've been very successful in preventing another attack on our soil."

He added that "As a general matter, every time sensitive intelligence is leaked, it hurts our ability to defeat this enemy. Our most important job is to protect the American people from another attack, and we will do so within the laws of our country."

Neither President Bush, nor the USA Today story, revealed much about the nature of the program.

The article does not state who disclosed information about the program. It does not state what legal authority and arguments the NSA relies upon. It does not state whether this data is being collected in real time, whether the telephone companies are transfering data afterwards, or what. While it states that the NSA has collected "phone call records", it does not clarify whether the NSA is also collecting records regarding e-mail and other internet protocol based communications.

Sen. Bill Nelson (D-FL), a member of the Senate Commerce Committee (SCC), wrote a letter to Sen. Ted Stevens (R-AK), the Chairman of the SCC, in which he asked Sen. Stevens "to immediately schedule Commerce Committee hearings and call the chief executive officers of these companies to testify about their companies' participation in the program".

Sen. Nelson (at left) added that "federal communications law generally prohibits telecommunications companies from giving out information about their customers' calling habits. Only in narrow circumstances is law enforcement permitted to gain access to such information. I am extremely concerned about the potential implications of this program on Americans' personal privacy, and I believe immediate hearings are necessary to understand the role of the phone companies in this program".

Sen. Patrick Leahy (D-VT), the ranking Democrat on the Senate Judiciary Committee (SJC), spoke at a SJC meeting on May 11. He stated that "Despite the Attorney General's continuing refusal to answer my questions and others about the Government’s collective massive databases on ordinary Americans, we now are beginning to learn the truth." See, opening statement.

Sen. Leahy cited the USA Today story, and commented that "This secret collection of phone call records of tens of millions of Americans includes ordinary Americans not suspected of any crime or any contact with al Qaeda. The President concealed the NSA eavesdropping program when he reassured all Americans that when this Administration talks about a wiretap that requires a court-ordered search warrant. We now know that he had been having the NSA engage in warrantless wiretaps Americans since October 2001. So while the Administration has tried to reassure us about the NSA domestic spying activities by characterizing them in the most narrow and self-serving terms, as if they were merely listening to Osama bin Laden calling into the United States, I have had my doubts. We need truthful answers to the questions we asked of the Attorney General back in February."

He added that "today we learn that the Administration has shut down the Department of Justice investigation into the NSA wiretapping program that was to be conducted by the Office of Professional Responsibility. Reports are that the White House will not allow Justice Department investigators the security clearances they need to do their job. This is an internal government investigation that is being stymied by the White House. This further complicates the nomination of Steven G. Bradbury, the acting Assistant Attorney General for the Office of Legal Counsel ..."

Jim Harper (at right), Director of Information Policy Studies at the Cato Institute, said that "This can no longer be called a 'terrorist surveillance program' because the surveillance extends to every American's phone calling."

Harper stated that "It is unlikely that authorities could restrict their use of a database of all Americans' phone calls. If it hasn’t been put to new purposes yet, before long this database will be used for general investigative purposes. As we’ve seen in the past, surveillance powers given to government officials are ultimately used even for political purposes."

"It flies in the face of Fourth Amendment principles that call for reasonableness or probable cause. It is not reasonable to monitor every American’s phone calling in a search for terrorists." Harper added that "The program was not authorized by Congress and it flies in the face of Congress’ intent when it defunded the Total Information Awareness program because of concerns about the privacy consequences of 'data mining.' "

The Center for Democracy and Technology (CDT) released a report titled "Illegal NSA Data Mining Highlights Need for Congressional Oversight". The CDT wrote that "It is not clear whether the government acquired the massive stream of data involved by tapping into the systems of telephone companies in real-time or whether the information was obtained retrospectively from records logged by the carriers."

But, "If the program involved real-time interception, it probably violated both the Foreign Intelligence Surveillance Act (FISA) and the statute on interception of call detail information in criminal cases. Both statutes require a court order for interception of information about calling patterns, even if the content of communications is not collected."

On the other hand, the CDT wrote, "If the government acquired the information not in real-time, but from the records of the communications companies, two separate provisions of law seem to prohibit the conduct at issue here." The CDT cited 47 U.S.C. § 222 and 18 U.S.C. § 2702.

Anthony Romero, Executive Director of the ACLU, stated in a release that "The NSA spying program is not only focused on terrorists or international calls. The government is clearly tracking the calls and communications of millions of ordinary Americans and that's just plain wrong. This news serves only as further proof of how far we have slid into an abuse of power that undercuts the values Americans hold dear."

The story published by the USA Today comes at an inopportune time for the three telephone companies identified in the story, AT&T, BellSouth and Verizon.

They are currently endeavoring to convince Representatives and Senators to pass major legislation that would create a national video franchise, and not include any meaningful network neutrality mandate. The telephone companies, and cable companies, have essentially asked the Congress to trust that they will not discriminate in the build out and offering of video services, and to trust that they will not discriminate in providing access to their broadband access facilities. The disclosure by USA Today might diminish that trust, as to AT&T, BellSouth and Verizon.

There is also the matter of the FCC's CALEA proceeding. There is a pending challenge to the FCC's August 5, 2005, order that announced that facilities based broadband service providers and interconnected voice over internet protocol (VOIP) providers are subject to requirements under the Communications Assistance for Law Enforcement Act (CALEA).

On May 5, 2006, a three judge panel of the U.S. Court of Appeals (DCCir) heard oral argument. Two judges indicated that they might overturn the FCC's order as to broadband service providers. See, story titled "Court of Appeals Hears Oral Argument in Challenge to FCC's August 5 CALEA Order" in TLJ Daily E-Mail Alert No. 1,365, May 8, 2006.

If the Court of Appeals were to vacate the FCC's order, in full or in part, and the DOJ were to seek Congressional amendment of the CALEA, then the present disclosure regarding NSA activities could undermine that legislative effort.

In addition, AT&T and BellSouth have announced their plans  to merge, but have not yet received regulatory approval. This requires approvals from the FCC and DOJ, which recently approved the mergers of AT&T and SBC, and Verizon and MCI. (The open FCC proceeding is Docket No. 06-74.) AT&T's and BellSouth's cooperation with the NSA may have enhanced their ability to win regulatory approval.