Maybe NSA spying isn't so illegal

For those of us who think the current NSA spying scandal,(? nobody's come up with a good third word there) is absolutely, totally illegal I have an observation from one of my previous business lives that may say part of the shocking revelations may be legal.

When it comes to monitoring, there is a very distinct legal difference between trapped information, or call detail information, and the content of the call.

About ten years ago, in one of my previous economic incarnations, I was an IS manager and one of the areas under my responsibilities was the phone system. Medium sized company spread over six states 800-1,000 employees. Well, one day, one of the VP's who functioned on my level came to me with the belief that one of his employees was passing pricing information to another company from the office. His first reaction was we've gotta record this guy's phone calls and email, but the company hadn't issued the previous "all your communications my be monitored policy memo," and if we had done so at that point, certainly the guy would have immediately stopped. So, we got a lawyer's consultation.

My takeaway from that conversation was that "trapped" call detail was treated distinctly differently under the law than a call's content. In other words, without any notification, we could look at all the details of any call past or present that passed through the phone system without any legal issues arising, number of origin, number called, length of call, etc. The content of the call, however, was a wholly more complicated legal matter.

Bottom line, the type of "call detail" information that the phone companies were transferring from their major overseas switches to the government for analysis, may not be protected under the Fourth Amendment the same way that the content of the calls would be.

It's roughly the equivalent of the "LUD's," the local usage details, that they always so easily obtain in cop shows like Law and Order, or whatever.

So, when you read something like this, no matter how creepy it feels, it may well be within the law, (the "besides" part is clearly illegal)

As part of the program approved by President Bush for domestic surveillance without warrants, the N.S.A. has gained the cooperation of American telecommunications companies to obtain back-door access to streams of domestic and international communications, the officials said......

What has not been publicly acknowledged is that N.S.A. technicians, besides actually eavesdropping on specific conversations, have combed through large volumes of phone and Internet traffic in search of patterns that might point to terrorism suspects. Some officials describe the program as a large data-mining operation.

Or this:

A former telecommunications technology manager told the Times that industry leaders have been storing information on calling patterns and giving it to the federal government to aid in tracking possible terrorists.

Now, a couple of disqualifiers on this post. I am not a lawyer and my understanding of this is a filtered version of how the law was presented to me years ago. At the time, 1995, email was still fairly new, so I have no idea of the law surrounding email, especially as the "detail," routing info is actually contained within the communication. We decided to not even try to go after his email.

And, lastly, from what I've read of the information leaked so far on the NSA spying, this "call detail" analysis is only one small part of a far bigger and more obtrusive policy. From the reporting thus far, it does appear that the NSA was/is(?) monitoring content in some cases involving US citizens on US soil, and that would be very clearly illegal.

I just wanted to add the little bit that I know about to the blogosphere.

(By the way, the guy ended up getting busted when one of his assistants walked through the open door to his office while he was doing this. Hate to leave the story without an ending.)