The Curious Thing About the USA TODAY Report on the NSA Program

The USA Today article states that soon after September 11, 2001,

NSA representatives approached the nation's biggest telecommunications companies. The agency made an urgent pitch: National security is at risk, and we need your help to protect the country from attacks.

The agency told the companies that it wanted them to turn over their "call-detail records," a complete listing of the calling histories of their millions of customers. In addition, the NSA wanted the carriers to provide updates, which would enable the agency to keep tabs on the nation's calling habits.

The sources said the NSA made clear that it was willing to pay for the cooperation. AT&T, which at the time was headed by C. Michael Armstrong, agreed to help the NSA. So did BellSouth, headed by F. Duane Ackerman; SBC, headed by Ed Whitacre; and Verizon, headed by Ivan Seidenberg.

With that, the NSA's domestic program began in earnest.

Just before that, USA Today described what has, historically, been the standard for customers' information:

The NSA's domestic program raises legal questions. Historically, AT&T and the regional phone companies have required law enforcement agencies to present a court order before they would even consider turning over a customer's calling data. Part of that owed to the personality of the old Bell Telephone System, out of which those companies grew.

Ma Bell's bedrock principle — protection of the customer — guided the company for decades, said Gene Kimmelman, senior public policy director of Consumers Union. "No court order, no customer information — period. That's how it was for decades," he said.

The concern for the customer was also based on law: Under Section 222 of the Communications Act, first passed in 1934, telephone companies are prohibited from giving out information regarding their customers' calling habits: whom a person calls, how often and what routes those calls take to reach their final destination. Inbound calls, as well as wireless calls, also are covered.

The financial penalties for violating Section 222, one of many privacy reinforcements that have been added to the law over the years, can be stiff. The Federal Communications Commission, the nation's top telecommunications regulatory agency, can levy fines of up to $130,000 per day per violation, with a cap of $1.325 million per violation. The FCC has no hard definition of "violation." In practice, that means a single "violation" could cover one customer or 1 million.

In the case of the NSA's international call-tracking program, Bush signed an executive order allowing the NSA to engage in eavesdropping without a warrant. The president and his representatives have since argued that an executive order was sufficient for the agency to proceed. Some civil liberties groups, including the American Civil Liberties Union, disagree.

So here's the curious thing:

AT&T, when asked about the program, replied with a comment prepared for USA TODAY: "We do not comment on matters of national security, except to say that we only assist law enforcement and government agencies charged with protecting national security in strict accordance with the law."

In another prepared comment, BellSouth said: "BellSouth does not provide any confidential customer information to the NSA or any governmental agency without proper legal authority."

Verizon, the USA's No. 2 telecommunications company behind AT&T, gave this statement: "We do not comment on national security matters, we act in full compliance with the law and we are committed to safeguarding our customers' privacy."

Qwest spokesman Robert Charlton said: "We can't talk about this. It's a classified situation."

We know that what Bush and the NSA are doing is hardly considered legal, as Bush and the NSA themselves seem to know, because when Qwest refused to cooperate without a court order and called Bush's bluff (Qwest told them to FISA for a warrant, or tens of millions of warrants), Bush/NSA retreated.

So what's with the "We do not comment on matters of national security" statement by 3 out of the 4 carriers? It's like the trolls who parrot the RNC's talking points. These telecommunications companies are publicly traded corporations. They're under no obligation to "not comment" or cover for the Bush administration. As the Dubai Ports deal showed us, foreign investors can (and do) own much of our infrastructure, like our telecommunications' networks. They are obligated to serve their shareholders whom, after cooperating with Bush and the NSA, they have left wide open to litigation, fines, and bankruptcy.

There's something very strange about the ease with which high-priced and talented corporate counsel for these corporations rolled over to the demand by Bush and the NSA. The Bush administration's demand was a sea change to the standard and practice by which customers' data had been held for decades.

Filed under: privacy, deregulation, Verizon, FCC, SBC, Qwest, deregulation, Communications Act of 1934, BellSouth, AT&T, domestic surveillance, NSA, Bush, The Constant American, Constant American, Technorati Tag, Technorati Tags, tags, categories