Government Access to Phone Calling Activity and Related Records: Legal Authorities

Publication Date: January 2007

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Media, telecommunications, and information

Type:

Abstract:

Media disclosures regarding an alleged National Security Agency (NSA) program designed to collect and analyze information on telephone calling patterns within the United States have raised interest in the means by which the Government may collect such information. The factual information available in the public domain with respect to any such alleged program is limited and in some instances inconsistent, and the application, if at all, of any possibly relevant statutory provisions to any such program is likely to be a very fact specific inquiry. It is possible that any information provided to the NSA from the telephone service providers was provided in response to a request for information, not founded on a statutory basis. If this were the case, such a request would not necessarily be limited by the statutory structures discussed below, but in some instances, depending upon the facts involved, might expose the telephone companies to some civil remedies or criminal sanctions. In addition, a request, not founded upon a statutory scheme, would appear to lack a means of compelling production of the information requested. This would seem to be consistent with the statement in the USA Today article of May 11, 2006, that one of the companies refused to comply with NSA's request for calling detail records, while at least one other company appears to have complied.

Numerous lawsuits have been filed by civil liberties groups against several telecommunications companies on behalf of their customers and subscribers, for their alleged cooperation with the NSA program that have harmed the plaintiffs' constitutional and statutory rights. One case, Hepting v. AT&T Corp., was filed in January 2006 and is based in part on evidence of participation in the NSA program by the defendant provided by a former AT&T employee, whereas all the other lawsuits were filed after the publication of the USA Today article and are based largely on the factual allegations made therein. On August 9, 2006, the Federal Judicial Panel on Multidistrict Litigation transferred 17 cases, with 26 additional cases treated as potential tag-along actions, that are pending throughout the country to the Northern District of California, and assigned them to U.S. District Judge Vaughn R. Walker for coordinated or consolidated pretrial proceedings, In Re: National Security Agency Telecommunications Records Litigation, MDL-1791. As of January 10, 2007, 42 actions were consolidated in the multidistrict litigation and are still ongoing.

This report summarizes statutory authorities regarding access by the government, for either foreign intelligence or law enforcement purposes, to information related to telephone calling patterns or practices. Where pertinent, it also discusses statutory prohibitions against accessing or disclosing such information, along with relevant exceptions to those prohibitions.