Can someone please explain how the NSA Slurp and Burp doesn't violate wiretap law? [View all]

[hootinholler]

Bear with me here a minute, I think it's important.

We know from Andrea Mitchell's interview of Clapper that it is not just metadata that is being slurped up by the NSA. How much is held remains to be proven, but at this point we know with certainty there is some call content being stored for future reference.

The relevant bits of the interview:

JAMES CLAPPER:

First-- as I said, I have great respect for Senator Wyden. I thought, though in retrospect, I was asked-- "When are you going to start-- stop beating your wife" kind of question, which is meaning not-- answerable necessarily by a simple yes or no. So I responded in what I thought was the most truthful, or least untruthful manner by saying no.

And again, to go back to my metaphor. What I was thinking of is looking at the Dewey Decimal numbers-- of those books in that metaphorical library-- to me, collection of U.S. persons' data would mean taking the book off the shelf and opening it up and reading it.

ANDREA MITCHELL:

Taking the contents?

JAMES CLAPPER:

Exactly. That's what I meant. Now--

ANDREA MITCHELL:

You did not mean archiving the telephone numbers?

JAMES CLAPPER:

No.

I Still am astounded at the notion of collection he has. I don't think that word means what he thinks it means, he has confirmed that someone somewhere has call content collected(my definition) waiting to be "collected&quot his definition).

How on earth this scheme doesn't run afoul of wiretap laws is beyond me. Maybe the secret warrant covers it, but where is the probable cause to precollect everything?

Wiretapping Law Protects "Oral," "Wire," and "Electronic" Communications Against "Interception"

Before 1967, the Fourth Amendment didn't require police to get a warrant to tap conversations occurring over phone company lines. But that year, in two key decisions (including the Katz case), the Supreme Court made clear that eavesdropping — bugging private conversations or wiretapping phone lines — counted as a search that required a warrant. Congress and the states took the hint and passed updated laws reflecting the court's decision and providing procedures for getting a warrant for eavesdropping.

BTW, That's really odd that it wasn't against the law for cops to listen in. Do we need a privacy amendment? Sorry, It continues...

The Wiretap Act requires the police to get a wiretap order whenever they want to "intercept" an "oral communication," an "electronic communication," or a "wire communication." Interception of those communications is commonly called electronic surveillance.

An oral communication is your typical face-to-face, in-person talking. A communication qualifies as an oral communication that is protected by the statute (and the Fourth Amendment) if it is uttered when you have a reasonable expectation that your conversation won't be recorded. So, if the police want to install a microphone or a "bug" in your house or office (or stick one outside of a closed phone booth, like in the Katz case), they have to get a wiretap order. The government may also attempt to use your own microphones against you — for example, by obtaining your phone company's cooperation to turn on your cell phone's microphone and eavesdrop on nearby conversations.

A wire communication is any voice communication that is transmitted, whether over the phone company's wires, a cellular network, or the Internet. You don't need to have a reasonable expectation of privacy for the statute to protect you, although radio broadcasts and other communications that can be received by the public are not protected. If the government wants to tap any of your phone calls — landline, cellphone, or Internet-based — it has to get a wiretap order.

An electronic communication is any transmitted communication that isn't a voice communication. So, that includes all of your non-voice Internet and cellular phone activities like email, instant messaging, texting and websurfing. It also covers faxes and messages sent with digital pagers. Like with wire communications, you don't need to have a reasonable expectation of privacy in your electronic communications for them to be protected by the statute.

Can someone please explain to me how this NSA Slurp and Burp program is legal? Or is that reason a State Secret?