Who's listening to your phone calls?

By Liz Pulliam Weston

If the uproar over government snooping on Americans' phone calls has left you confused about your privacy rights, you're not alone.

Legal and privacy experts say there are enough gray areas, conflicting statutes and exceptions to the laws in this area to baffle even the best informed.

"This stuff is hugely complicated," said Marc Rotenberg, executive director of the Electronic Privacy Information Center, a former counsel to Vermont Sen. Patrick Leahy on the Senate Judiciary Committee and an instructor in electronic privacy law at George Washington University. "I helped write some of these laws and testified about them to Congress … and there are still things I don't understand."

Two major revelations set off the debate:

In December 2005, The New York Times revealed that the National Security Administration (NSA) was conducting warrantless surveillance of Americans' international phone calls. The Bush administration insists the wiretaps are legal, but critics say U.S. law requires the government to at least get warrants from a secret court set up by the 1978 Foreign Intelligence Surveillance Act.

In May, USA Today reported that several phone carriers had turned over to the NSA massive databases of customers' domestic phone records. Rather than listening in or recording calls, the agency reportedly collected details of calls made by millions of Americans.

Some privacy experts, like Privacy Journal publisher Robert Ellis Smith, contend that the Patriot Act -- originally passed by Congress in 2001 and revised in March -- has unwound many key protections on phone communications contained in previous federal legislation enacted over the last 72 years. Others, like Rotenberg, insist the act changed some of the rules but left the basic protections intact.

In general, though, this much is clear: Your phone records -- who you called and when -- have much less protection than what was actually said.

Tracking who you call

Americans' privacy protections are rooted in the Fourth Amendment's ban on "unreasonable search and seizure." But subsequent legislation expanded and clarified those rights when it came to telephone conversations. The Communications Act of 1934 banned recording or intercepting communications without the consent of at least one party, while the Federal Wiretap Act of 1968 made electronic surveillance illegal without a warrant.

But in 1979, the U.S. Supreme Court decided people's "expectation of privacy" didn't extend to the numbers they dialed. The court rejected a convicted robber's contention that police violated his Fourth Amendment rights when they put a "pen register" device on his phone line to record the numbers he dialed. The justices ruled police didn't need a warrant because the device didn't constitute a search under the Fourth Amendment and that the robber didn't have any legitimate expectation of privacy.

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"First, it is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information," Justice Harry Blackmun wrote in Smith v. Maryland. "Second, even if the petitioner did harbor some subjective expectation of privacy, this expectation was not one that society is prepared to recognize as 'reasonable.'"

Seven years later, Congress undid some of the court's work by requiring police obtain a warrant before installing pen registers or other devices to record phone numbers. The same legislation also prohibited telecommunications companies from "knowingly" divulging customer data to government entities.

After 9/11, Congress reversed course, making it easier for the government to get phone records without warrants and giving telephone providers an "emergency" exception that would allow them to disclose customer data. In March, Congress changed the wording to this exception in a move that some believe may have made phone companies more comfortable with providing the information. (See timeline below.)

Of course, while all these records were reportedly being gathered secretly by the NSA, similar information was being hawked quite openly on the Internet by companies that promised to obtain anyone's cell or landline records for a fee. The companies get the information by "pretexting," or pretending to be the customer. And in many states, carriers can sell the same information to marketers. (See "Privacy alert: Your phone records for sale" and "Your secrets for sale -- cheap.")

Bottom line: Regardless of whether phone companies' wholesale provision of customer records to the NSA is legal, you shouldn't assume that who you dial is private.

Tracking what you say

On the other hand, you can -- at least at this point -- have some expectations of privacy when it comes to what you talk about while on the phone.

"For domestic conversations where there's not probable cause (to believe a crime has been committed), there's still a very high level of privacy protection," Rotenberg said.

Typically, law enforcement agencies must show they have a reasonable belief that a crime has been or is about to be committed to get a warrant to tap your phone.

As always, there are exceptions. If the government suspects you of spying, or if you're talking to a "foreign national" or "agent of a foreign power," a secret warrant might be obtained at the Foreign Intelligence Surveillance Court. Or, if your calls were intercepted as part of the NSA program revealed by the Times, there might not have been any warrant at all.

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