



Inside the mind of a crazy libertarian
I think that regardless of whether or not it is legal it should be done. After 911, we learned that oceans cannot protect us. There are people out there who want to kill us all. This is a small price to pay. Frankly, I think it would be best if the government listened to all of our phone calls, foreign and domestc. We are at war. Those who oppose having their phone calls monitored -- what are they hiding? The government is welcome to listen to all of my phone calls anytime it wants to -- all they will learn is that I love my country and hate terrorists.Leaving the emotional argument aside, I must say lots of discussions about government are structural (due process right etc.) in precisely the sense that I argue below--we worry about concentrating certain powers into the hands of certain governmental entities without sufficient oversight and regulation, because we are worried about the potential for abuse of that power. And those worries are grounded in our long history with governments, which does in fact suggest that sweeping governmental powers without oversight and regulation are frequently abused by the people who hold such powers.
[A] provider of . . . electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications . . . ) to any governmental entity.Of the possible exceptions to the statute, three are most likely to be relevant. They permit disclosure under the circumstances listed in 18 U.S.C. 2702(c), as amended by the Patriot Act renewal of 2006:
(2) with the lawful consent of the customer or subscriber;Let's take each of these exceptions in turn.
(3) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;
(4) to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency[.]
Keeping in mind that implied consent is not constructive consent but 'consent in fact,' consent might be implied in spite of deficient notice, but only in a rare case where the court can conclude with assurance from surrounding circumstances that the party knowingly agreed to the surveillance. We emphasize that consent should not casually be inferred, particularly in a case of deficient notice. The surrounding circumstances must convincingly show that the party knew about and consented to the interception in spite of the lack of formal notice or deficient formal notice.Did users consent to the disclosure under this standard? The Washington Post reports that government lawyers seemed to think so, based on small print in the Terms of Service of the telephone service customer agreements:
One government lawyer who has participated in negotiations with telecommunications providers said 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. The fine print of many telephone and Internet service contracts includes catchall provisions, the lawyer said, authorizing the company to disclose such records to protect public safety or national security, or in compliance with a lawful government request. . . . Verizon's customer agreement, for example, acknowledges the company's 'duty under federal law to protect the confidentiality of information about the quantity, technical configuration, type, destination, and amount of your use of our service,' but it provides for exceptions to 'protect the safety of customers, employees or property.' Verizon will disclose confidential records, it says, "as required by law, legal process, or exigent circumstances."This seems like a very unpersuasive argument in light of the cases construing consent under the Wiretap Act, of which the consent provision in the SCA is a mirror. It reminds me of the argument that a DOJ lawyer once tried to make that monitoring prison phones was allowed because language in the Code of Federal Regulations clearly notified prisoners that their phones would be monitored. According to the lawyer, the notice in the fine print of the CFR was sufficient to make the monitoring consensual. Judge Posner rejected the argument, calling it "the kind of argument that makes lawyers figures of fun to the lay community." United States v. Daniels, 902 F.2d 1238 (7th Cir. 1990). In light of these cases, I think the consent argument is weak.