^{Democracy & Technology Blog} Can NSA Force Telecom Companies To Collect More Data?

Recent reports highlight that the telephone meta-data collection efforts of the National Security Agency are being undermined by the proliferation of flat-rate, unlimited voice calling plans. The agency is collecting data for less than a third of domestic voice traffic, according to one estimate.
It’s been clear for the past couple months that officials want to fix this, and President Obama’s plan for leaving meta-data in the hands of telecom companies–for NSA to access with a court order–might provide a back door opportunity to expand collection to include all calling data. There was a potential new twist last week, when Reuters seemed to imply that carriers could be forced to collect data for all voice traffic pursuant to a reinterpretation of the current rule.

While the Federal Communications Commission requires phone companies to retain for 18 months records on “toll” or long-distance calls, the rule’s application is vague (emphasis added) for subscribers of unlimited phone plans because they do not get billed for individual calls.

The current FCC rule (47 C.F.R. � 42.6) requires carriers to retain billing information for “toll telephone service,” but the FCC doesn’t define this familiar term. There is a statutory definition, but you have to go to the Internal Revenue Code to find it. According to 26 U.S.C. � 4252(b),

the term “toll telephone service” means–
(1) a telephonic quality communication for which
(A) there is a toll charge which varies in amount with the distance and elapsed transmission time of each individual communication…
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