THE NSA AND THE PATRIOT ACT….Orin Kerr has an interesting tidbit today about the legality of the recently disclosed NSA monitoring program. There are exceptions to the law that requires telecom companies to keep their call records private, and Orin notes that the 2006 revision of the Patriot Act subtly revises one of the exceptions:
The new exception states that disclosure is permitted “if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency.” Few people were paying attention to this change at the time, but I would guess that it was very important to the telephone companies: The change expanded the exception to allow disclosure when there is a good faith belief instead of a reasonable belief, and when there was a danger instead of an “immediate” danger. I wouldn’t be surprised if the telephone companies were pushing the change in part out of concern for civil liability for their participation in the NSA call records program.
It’s not clear that this change in wording had anything to do with the NSA program, especially since a judge would have to agree that “emergency” = “decades-long war on terror.” Still, it might be a worthwhile lead for someone to follow up.