Government Access to Phone Calling Activity and Related Records: Legal Authorities

Edward C. Liu
Legislative Attorney

Gina Stevens
Legislative Attorney

Public interest in the means by which the government may collect telephone call records has been raised by revelations in recent years regarding alleged intelligence activity by the National Security Agency (NSA) and the Federal Bureau of Investigation (FBI). According to a USA Today article from May 11, 2006, the NSA allegedly sought and obtained records of telephone numbers called and received from millions of telephones within the United States from three telephone service providers; a fourth reportedly refused to provide such records. Additionally, a series of reports issued by the Department of Justice’s Office of the Inspector General (DOJ OIG), most recently in January of 2010, indicate that, between 2002 and 2006, consumer records held by telephone companies had been provided to the FBI through the use of “exigent letters” and other informal methods that fell outside of the national security letter (NSL) process embodied in statute and internal FBI policies.

The Supreme Court has held that there is no Fourth Amendment protection of telephone calling records held in the hands of third party providers, where the content of any call is not intercepted. However, this report summarizes existing statutory authorities regarding access by the government, for either foreign intelligence or law enforcement purposes, to information related to telephone calling patterns or practices. Where pertinent, it also discusses statutory prohibitions against accessing or disclosing such information, along with relevant exceptions to those prohibitions.

Statutory provisions authorizing, pursuant to court order, the use of pen registers and trap and trace devices exist in both the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. § 1841 et seq., and, for law enforcement purposes, in 18 U.S.C. § 3121 et seq.

FISA’s “business records” provision, 50 U.S.C. § 1861, provides authority, pursuant to court order, for requests for production of “any tangible thing” relevant to collection of foreign intelligence information not concerning a U.S. person, or relevant to an investigation into international terrorism or clandestine intelligence activities. Under 50 U.S.C. § 1861, an investigation concerning a U.S. person may not be based solely on activities protected by the First Amendment.

Access to stored electronic communications is addressed in 18 U.S.C. § 2701 et seq. 18 U.S.C. § 2702 prohibits voluntary disclosure of customer communications records by a service provider unless it falls within one of several exceptions. Required disclosure of customer records to the government under certain circumstances is addressed under 18 U.S.C. § 2703, including, among others, disclosure pursuant to a warrant or grand jury or trial subpoena. 18 U.S.C. § 2709 is a national security letter provision, under which a wire or electronic service provider may be compelled to provide subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession.

Finally, § 222 of the Communications Act of 1934, as amended, protects customer proprietary network information, and violations of pertinent provisions of law or regulation may expose service providers to criminal sanctions, civil penalties, and forfeiture provisions.


Date of Report: November 9, 2011
Number of Pages: 18
Order Number: RL33424
Price: $29.95

Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreports

Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.