NSA Call Database - Legal Status

Legal Status

The NSA call database was not approved by the Foreign Intelligence Surveillance Court (FISC) as required by the Foreign Intelligence Surveillance Act (FISA). The FISC was established in 1978 to secretly authorize access to call-identifying information and interception of communications of suspected foreign agents on U.S. soil. Stanford Law School's Chip Pitts has a good overview of the relevant legal concerns in The Washington Spectator.

Separate from the question of whether the database is illegal under FISA, one may ask whether the call detail records are covered by the privacy protection of the Fourth Amendment of the U.S. Constitution. This is unclear. As the U.S. has no explicit constitutional guarantee on the secrecy of correspondence, any protection on communications is an extension by litigation of the privacy provided to "houses and papers". This again is dependent on the flexuous requirement of a reasonable expectation of privacy.

The most relevant U.S. Supreme Court case is Smith v. Maryland. In that case, the Court addressed pen registers, which are mechanical devices that record the numbers dialed on a telephone; a pen register does not record call contents. The Court ruled that pen registers are not covered by the Fourth Amendment: "The installation and use of a pen register, was not a 'search,' and no warrant was required." More generally, "This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."

The data collecting activity may however be illegal under other telecommunications privacy laws.