Telcos Scrambling for Wiretapping Immunity

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September 21, 2007

Telcos Scrambling for Wiretapping Immunity

An Ars Technica rundown on telcos seeking wiretapping immunity can take us into the weekend:

The list of allegations continues to lengthen. There are now several lawsuits under way concerning the NSA's domestic spying program. In addition, recent revelations have suggested that major carriers turned over customer data in response to the FBI's "exigent letters" despite the fact that those letters are not authorized by statute. [EFF legal director Cindy] Cohn notes that EFF's intimate involvement in both of those controversies makes the organization ideally situated to help the FCC begin an inquiry.

Cohn quotes section 222 of the Communications Act, which says that telecommunications carriers may not "use, disclose, or permit access to individually identifiable customer proprietary network information" except as required by law. It appears that neither the NSA's domestic spying program nor the FBI's "exigent letters" were authorized by statute, suggesting that AT&T, Verizon, and other communications providers broke the law if they provided information to the government in response to such requests.

Despite all this, the FCC wants little to do with investigating any of it, preferring to wait until an intensive lobbying effort by telcos can pay off in retroactive immunity for their illegal eavesdropping.

On Wednesday I linked to Glen Greenwald's comments on a New York Times report regarding that effort. Yesterday, Newsweek featured a much more thorough treatment:

The case for new legislation retroactively giving telecoms companies protection against private lawsuits—including lawsuits already pending—was outlined this week by Kenneth Wainstein, assistant attorney general for national security. At a House Judiciary Committee hearing chaired by Rep. John Conyers, a Michigan Democrat, Wainstein said that giving telecoms companies retroactive liability was a matter of "general fairness."

"I think it's sort of fundamentally unfair and just not right to—if a company allegedly assisted the government in its national-security efforts, in an effort to defend the country at a time of peril, that they then get turned around and face tremendously costly litigation and maybe even crushing liability for having helped the United States government at a time of need ... it's just not right," Wainstein testified.

That's an absurd rationale the EFF has identified for what it is: An effort to shut down or preempt any further inquiry into the nature of wiretap programs of questionable legality:

"It's clear the goal is to kill our case," said Cindy Cohn, legal director of the Electronic Frontier Foundation, a San Francisco-based privacy group that filed the main lawsuit against the telecoms after The New York Times first disclosed, in December 2005, that President Bush had approved a secret program to monitor the phone conversations of U.S. residents without first seeking judicial warrants. The White House subsequently confirmed that it had authorized the National Security Agency to conduct what it called a "terrorist surveillance program" aimed at communications between suspected terrorists overseas and individuals inside the United States. But the administration has also intervened, unsuccessfully so far, to try to block the lawsuit from proceeding and has consistently refused to discuss any details about the extent of the program—rebuffing repeated congressional requests for key legal memos about it.

"They are trying to completely immunize this [the surveillance program] from any kind of judicial review," added Cohn. "I find it a little shocking that Congress would participate in the covering up of what has been going on."

After the pre-recess sheep stampede, I'm inclined to think there's nothing shocking about it at all.