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New Facts Suggest A Possible Reason Why the Phone Companies May Not Be Liable For the NSA Call Records Program

In today’s New York Times, Matt Richtel and Ken Belson look at the statements made this week by the major telcos and come up with a conclusion: The NSA Call Records program seems to have been focused on long distance carriers instead of local call carriers. An excerpt:

Government efforts to obtain data from the nation’s largest phone companies for a national security database appear to have focused on long-distance carriers, not local ones, statements by company officials indicate.

The statements have come in the week since USA Today reported that the National Security Agency had collected local and long-distance phone records on tens of millions of Americans from Verizon, BellSouth and AT&T in the aftermath of the Sept. 11 attacks.

The responses by the companies suggest that the agency, in an effort to find patterns that could identify terrorists, sought records from major long-distance providers like the former MCI (now part of Verizon), AT&T and Qwest, but did not ask for data on local calls.

Why does that matter for purposes of the phone companies’ liability? Well, I’m not sure it does. But I have a possible idea about why it might.

Here’s my thinking. The Stored Communications Act, 18 U.S.C. 2701-11, 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?

Maybe, but I’m not entirely sure. I don’t know much about how modern telephone networks work, but I am guessing that local carriers carry the first part of the call. In the case of a long-distance call, I assume that the long-distance carrier picks up the call at some point from the local carrier, and sends it to the local carrier at the receiving end of the call. If that’s right, I’m not entirely sure the long-distance carrier is a provider of electronic communications service.

I can see arguments on both sides: one one hand, the long-distance provider is providing users the ability to send a particular type of wire communication in a particular way; on the other hand, users have the ability to send wire communications without it. What do you think? Are companies that only provide long-distance service providers of “electronic communication service”?