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.
Letters from MSN Money readers: Take a look what people are saying about Weston's article "Who's listening to your phone calls?"
"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.
Of course, the government isn't the only wiretapper you have to worry about. Only 12 states -- California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania and Washington -- require that all parties participating in a phone call give permission before a conversation is recorded. The rest of the states allow "one-party consent" -- meaning that only one person involved in the phone conversation needs to approve before a call can be taped. Even in states with all-party consent, though, law enforcement may be able to listen in without a warrant if they have just one party's OK.
Also, the Privacy Rights Clearinghouse warns that there are plenty of devices that allow others to illegally tap your phone and record your conversation. These devices can be hard to detect -- they typically don't give themselves away by clicks or beeps -- so if you suspect a tap, you may need to have the phone company inspect your line.
If they find an illegal tap, they're supposed to tell you.
If they find a government tap, they're supposed to keep their mouths shut.
So yes, this is another case where no news may be bad news. And by the way, those devices that purport to tell you whether your line is tapped? Basically bogus, says the Privacy Right Clearinghouse; they won't detect modern wiretapping technology.
Wireless, cordless make easier prey
Cordless phones and cell phones can be particularly vulnerable to eavesdroppers. Readily available radio scanners can allow others to easily listen in on analog signals emitted by many cordless phones and by some cell phones (typically dual-mode models that switch to analog signals when digital transmission isn't available). The digital technology used by more expensive cordless phones and most cell phones is more secure, but their signals can still be deciphered by the hardcore scanners typically available to law enforcement.The Privacy Rights Clearinghouse recommends buying cordless phones that use digital spread spectrum technology, scramble the signal and operate on higher frequencies, such as 900 megahertz, 2.4 gigahertz or 5.8 gigahertz.
That won't prevent the most sophisticated eavesdroppers from listening, but should discourage casual hobbyists.Cell phone users should be particularly cautious if their phone has analog capabilities, the clearinghouse says, and those who are security-conscious should consider phones with CDMA (Code Division Multiple Access) technology or the latest 3G generation of GSM (Global System for Mobile communications).
Better yet, stay out of the habit of discussing sensitive matters on your cell -- particularly if your half of the conversation can be heard by anyone in the vicinity. Your own loud voice may be a greater threat to your privacy than any scanner-equipped eavesdropper.
If after reading all this you're feeling a little exposed, well ... join the club.
Sidebar: A brief history of wiretapping
1791: The Fourth Amendment to the Constitution establishes basic privacy rights by protecting Americans against "unreasonable search and seizure." More specifically: The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."1934: Federal Communications Act prohibits the use of information obtained by wiretapping and requires at least one party to consent before phone conversations can be recorded.
1968: Omnibus Crime Control and Safe Streets Act, also known as the Federal Wiretap Act, made electronic surveillance illegal unless a court order is obtained. To get a court order, law enforcement must show probable cause that a crime is involved, be specific about the communications to be intercepted and assure the court that other investigative methods have failed or are too dangerous (the "last resort" clause).
1978: Foreign Intelligence Surveillance Act sets up a separate and secret legal system for foreign intelligence surveillance. The act requires the government to get a special warrant from the Foreign Intelligence Surveillance Court to intercept communications that could affect national security. The government does not have to show probable cause if the surveillance target is a foreign national or agent of a foreign power; if the target is a "U.S. person," the government must show probable cause that the person is involved in spying or similar criminal activity.
1979: In Smith v. Maryland, the U.S. Supreme Court rules that police could use a "pen register" device to record outgoing calls from a robbery suspect's home. The court held that the device was not a "search" under the Fourth Amendment and that no warrant was required.
1986: The Electronic Communications Privacy Act, with two parts consisting of the Wiretap Act and the Stored Communications Act, extends privacy protections by requiring warrants for pen registers and trap and trace devices, which record incoming calls. The Stored Communications Act prohibits phone providers from "knowingly" divulging customer records "to any government entity," with some exceptions.
1994: Communication Assistance for Law Enforcement Act made clear telecommunications carriers have a duty to cooperate with law enforcement agencies in conducting electronic surveillance when the agencies have a court order or other "lawful authorization."
2001: The Patriot Act, among many other provisions, makes it easier for the government to search phone and other records in the name of fighting terrorism. The act also establishes an "emergency" exception to the ECPA's ban on telecommunications companies sharing information with the government if the provider "reasonably believes" that not sharing the information could result in death or serious injury to any person.
2006: Congress' update to the Patriot Act, which passes in March, changes the wording to the emergency exception in the Electronic Communications Privacy Act in significant ways. The original language allowed disclosure if "the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information." The update replaced "reasonably believes" with the phrase "in good faith" and eliminated the word "immediate," changes that some legal experts say could have made it easier for phone companies to share their databases with the NSA.
Liz Pulliam Weston's column appears every Monday and Thursday, exclusively on MSN Money. She also answers reader questions in the Your Money message board.
