Yes, but is the NSA program illegal?
That’s not the question many are asking right now, but David Gartenstein-Ross is.
From National Review:
FISA distinguishes between ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œelectronic surveillance,ÃƒÂ¢Ã¢â€šÂ¬Ã‚? which collects the substantive content of electronic communications, and ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œpen registers,ÃƒÂ¢Ã¢â€šÂ¬Ã‚? which collect only the addressing information of electronic communications. Although the language of FISA is somewhat convoluted, information about what calls were being made that doesnÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢t involve listening in on the discussions themselves should be classified as a pen register rather than electronic surveillance under the statute.
However, the definition of ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œpen registerÃƒÂ¢Ã¢â€šÂ¬Ã‚? in FISA shows that the statute doesnÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢t regulate the government with respect to the technology at issue here. FISA states that the regulations governing pen registers do not ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œinclude any device or process used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by such provider.ÃƒÂ¢Ã¢â€šÂ¬Ã‚? That is precisely what was alleged in this case: The sources who spoke to USA Today said that the three participating telecommunications companies handed over information that was collected pursuant to their regular billing procedures. FISA does not implicate such action.
Nor would the Fourth Amendment, which protects Americans from unreasonable searches and seizures, make the conduct in question illegal. The Supreme Court held in Smith v. Maryland (1978) that government collection of phone numbers called does not violate the Fourth Amendment.
Frankly, I don’t think the question David is asking is the one anybody is really worried about, but I appreciate the perspective nonetheless.