News Release

Gonzales Needs to Explain His Phone Record Collection Theory

Collecting telephone subscriber records without a court order is a federal crime  

Washington, DC (May 25, 2006) – May 24, the Washington Post reported that U.S. Attorney General Alberto Gonzales explained at a press conference that the government can obtain records of domestic customers’ telephone calls without court approval under a 1979 Supreme Court ruling that authorized the collection of business records.[1] Gonzales would not confirm a USA Today report[2] that said the National Security Agency had collected the phone records of tens of millions of Americans not suspected of terrorist activity. But then the attorney general made an unsettling assertion – that telephone customers have no reasonable expectation of privacy in their personal and business phone records. According to the Post:

Gonzales told reporters that, under the Smith v. Maryland ruling, "those kinds of records do not enjoy Fourth Amendment protection. There is no reasonable expectation of privacy in those kinds of records."[3]

That seemed to be an astonishing admission – that whether or not the government is in fact “drift-netting” the call identification information of millions of telephone customers, the attorney general believes it is legal to do so. It is not. Smith v. Maryland did hold that telephone billing records had limited protection under the 4th amendment. But in response to that holding, legal experts say, Congress changed the law over 20 years ago.

“In 1986, Congress enacted the Electronic Communications Privacy Act,[4] which requires judicial approval in order to use devices that capture outgoing or incoming calling number information,” said NACDL Second Vice President John Wesley Hall, Jr., an expert on search and seizure.[5] “Unauthorized interception of this information is a misdemeanor, and the attorney general, of all people, should know that.”

The general prohibition and exceptions on pen register and trap and trace device use, including intelligence use, are in the U.S. criminal code at 18 U.S.C. §§ 3121-3127. Section 3121(d) provides that whoever records outgoing caller information (“pen register” information) or the numbers of incoming calls (“trap and trace” or “Caller ID”) without a court order or permission of the customer is guilty of a misdemeanor and may be fined, imprisoned up to one year, or both.

“In seeking an order, an attorney for the federal government needs to show that the information is likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency. That threshold is not high – federal magistrates have little discretion to deny an application.” While the statute contains several narrow exceptions, there is no provision which would permit wholesale collection of telephone subscriber information, Hall observed.

According to Hall, the order permitting use of a pen register, trap or tracing device must specify: (1) the identity of the telephone subscriber; (2) the identity of the person under investigation; (3) the number and physical location of the telephone; and (4) the offense to which the monitoring relates.

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“If the government really is collecting wholesale subscriber information on millions of Americans who are not under any suspicion, I do not see the authority for it,” Hall said. “That has been prohibited by law for 20 years.”
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  1. Walter Pincus, “Gonzales Defends Phone Data Collection,” The Washington Post, May 24, 2006 at A6. Archived at: http://www.washingtonpost.com/wp-dyn/content/article/2006/05/23/AR2006052301594.html. The next day, the Post published a follow-up story questioning the attorney general’s theory. Walter Pincus, “Gonzales’s Rationale on Phone Data Disputed,” The Washington Post, May 25, 2006 at A8. Archived at: http://www.washingtonpost.com/wp-dyn/content/article/2006/05/24/AR2006052402329_pf.html  
  2. Leslie Cauley, “NSA has massive database of Americans’ phone calls,” USA Today, May 10, 2006 at A1. Archived at: http://www.usatoday.com/news/washington/2006-05-10-nsa_x.htm  
  3. Pincus, note 1.
  4. Codified at 18 U.S.C. §§ 3121-3127, “Pen Registers and Trap and Trace Devices.”
  5. Hall is the author of Search and Seizure (3d ed. Lexis Law Publishing, 2000). Hall is also the author of the blog FourthAmendment.com.

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For further information, contact NACDL Second Vice President John Wesley Hall, Jr., at (501) 371-9131, cell (501) 960-0690, or Public Affairs Director Jack King at (202) 872-8600 ext. 228, cell (703) 401-3857.

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.