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Should Phone Companies Hire Orin Kerr?

A few days ago, Overlawyered reported on some of the early lawsuits being filed against AT&T, Verizon and other phone companies for disclosing customer phone records to NSA in violation of the Fourth Amendment of the Constitution and various statutes.  Today, at his solo blog, Volokh conspirator Orin Kerr argues that the phone companies may not be liable, at least for violations of the Stored Communications Act, 18 USC 2701.  As Kerr explains:

The Stored Communications Act, 18 U.S.C. 2701-11, [which prohibits certain disclosures of customer records to government] only regulates two kinds of providers: providers of electronic communication service and providers of remote computing service. Everyone agrees that the telephone companies are not acting as providers of remote computing service, so if they are liable they must be acting as providers of electronic communication service. 18 U.S.C. 2510(15) defines “electronic communication service” as “any service which provides to users thereof the ability to send or receive wire or electronic communications.” (For our purposes, a “wire communication” is a telephone call; an “electronic commuincation” is an e-mail.)

A local telephone company is clearly a provider of electronic communication service: it literally provides users the ability to send or receive telephone calls. But is a company that only provides long distance service a provider of electronic communication service?

As Orin explains, the government  only sought information from long distance providers, not local phone companies.   If, as he claims, long distance companies are not covered by the Stored Communcations Act, they can't be found liable for violating it.  Maybe those phone companies should hire Kerr to defend them -- or maybe they'll settle the lawsuits just as readily as they turned over their customers' records.

Posted by Carolyn Elefant on May 18, 2006 at 03:43 PM | Permalink | Comments (0) | TrackBack (0)

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