Amendment to Stored Communications Act (SCA) shields phone companies

[rumpel]

The recent denials by the phone companies, and as per additional information posted by Hardhead as a possible shield
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=132x2633977
and the loophole mentioned in Sabra's post
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=102x2291798

here is an argument made by an attorney. I believe this is the underlying argument of the 50B case against Verizon

snip

That law is the 1986 Stored Communications Act (SCA), which specifically and clearly forbids phone companies from turning over records to the government without a warrant or court order: Under the law, providers of "electronic communications ... shall not knowingly divulge a record or other information pertaining to a subscriber or customer ... to any government entity." (Emphasis added.)

There is one particularly relevant exception to this rule: Companies, under the law applicable until March 2006 (when the SCA was amended), could only turn over records if they "reasonably" believed there was an "immediate danger of death or serious physical injury" that disclosure might help prevent. So for instance, if there were a specific investigation of an imminent terrorist act, the companies could instantly - without a court order or warrant - turn over the suspects' records.

It appears that the NSA program predated the March 2006 SCA amendment (which coincided with the renewal of the USA Patriot Act). Indeed, the program may have existed since shortly after September 11. If so, then the pre-amendment "reasonable" belief of "immediate" danger standard applied.

It's unlikely that the phone companies can argue that they had a "reasonable" belief of "immediate" danger throughout the entire period from whenever the program began, until the date of the amendment. Perhaps in the months just after the September 11th attacks, or during periods when the threat level was most elevated, a belief in "immediate" danger was conceivably warranted - even "reasonable." But even the government has only claimed that there was immediate danger in particular places, and during particular time periods.

Yet there is no suggestion by the government that the NSA's phone-log monitoring was restricted by place, time period or threat level. Instead, it appears to have been a continuing program, which undermines any claim that it was justified by "immediate" danger.

The Recent Revelations About the NSA's Access to Our Phone Records: The Laws that Were Probably Broken, and the Likely Consequences
By ANITA RAMASASTRY
http://writ.news.findlaw.com/ramasastry/20060515.html

The troubling aspect of it all is that this is about the past.
Now, our rights are seriously undermined by a series of laws passed by this congress, which were obviously brought up after the fact to squash future challenges.

More troubling however are facts unknown and under the veil of secrecy for "national security" reasons.
The Senators ask, why did bush not ask to make changes in the law? Is there anything else he needs to have changed?

Why should he? It is more convenient to quietly implement, without scrutiny, the outrageous rights of the Executive Branch asserted, and utilize Signing Statements and Executive Orders which in effect gives bush exclusive rights for himself but denies the same to future presidents.