Guess what? The NSA's illegal, poorly-justified, warrantless wiretapping of international calls turns out not to have been confined to a few people, and it hasn't been confined to international calls. USA Today, of all places, broke the story on Thursday that the NSA maintains a database of "tens of millions" of phone calls. Not only that, but this database consists of calls from one "United States person" to another "United States person," as defined by the FISA Act of 1978.

If you thought the first NSA wiretap thing was legally murky, then let's see how murky this new one is.

50 U.S.C. 1801 et seq. makes reference to "trap and trace" and "pen register" devices. A "trap and trace" device is used to determine who the parties to the call are. A "pen register" is used to determine what numbers have been dialed. Both of these devices can be used for spying, and both require a court order in order for them to be used in foreign intelligence surveillance. In this case, however -- and did we think this would ever happen? -- neither device had to be employed, since the phone companies in question willingly surrendered the information to the NSA. So the issue becomes: is it still legal if the phone company gives the information willingly? No spying devices were employed; the NSA had to do nothing; is it still illegal?

If it were the NSA actively doing the snooping, then it might be illegal. First, no warrant -- that we know of -- was issued to the FISA court. Second, Congress has never declared war, and this program has been going on for more than fifteen days, so the "emergency" provisions of FISA don't apply, here. Third, in warrant applications, the Attorney General must certify that it is unlikely that a "United States person" will be a party to any electronic surveillance. In the current NSA debacle, United States persons are the only ones under surveillance.

But again, the NSA wasn't forcing AT&T and Verizon to hand over information. In fact, Qwest Communications appears to be the only company that refused to comply with the NSA's request for information. I guess it's too bad that they provide crappy service, otherwise I'd switch to them, since they seem to care about civil liberties.

The Constitution has few protections against a corporation invading a person's privacy or taking away civil liberties. The Founding Fathers didn't have such corporations in 1789; they thought that the primary threat to liberty would come from the government. Turns out they didn't anticipate the power of the corporation. As such, it is illegal for the government to inpinge upon your freedoms, but it's not necessarily illegal for a corporation that has as much power as the government to do the same.

18 U.S.C. 2702 prohibits carriers from divulging consumer information except in a few instances, and none of the instances adequately describes the current NSA data-mining operation. However, 18 U.S.C. 2709 requires carriers to comply with FBI requests for "toll" information, which is information about who placed the call, to whom the call was placed, what time the call was placed, and how long the call lasted. This is the information that the NSA has obtained; however, 18 U.S.C. 2709 says that only the FBI is authorized to receive this information, and this information must be "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States." This program could be illegal in that the NSA is not authorized to receive this information, and it is hardly justifiable that the toll records of tens of millions of Americans are all "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities."