EoW March 2008

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EuroWire – March 2008 38
Transat lant ic Cable
The White House wants the protections under FISA made
permanent. Mr Gillespie told the reporters on the plane,
‘Terrorists do not work on six-month time frames.’ In explaining
why the FISA extension is such a big deal to the White House,
Mr Froomkin referred to the article ‘Wider Spying Fuels Aid
Plan for Telecoms’ in the New York Times on 16th December. The
work of three Times reporters, it asserts that the reliance of the
National Security Agency on telecommunications companies
is broader and deeper than ever before, as acknowledged by
government and industry officials. But it is an alliance strained by
legal worries and the fear of public exposure. In this view, what
is at stake no less than the federal government’s extensive but
uneasy partnership with industry to conduct a wide range of
secret surveillance operations in fighting terrorism and crime.
In short, Mr Froomkin concludes, the question of whether or not
Congress assures permanent protection to telecoms aiding the
government’s warrantless eavesdropping programme is no small
matter. Rather, he says,“It’s a historic battle over the future of the
country as a surveillance state.”
Congress versus the White House on
wiretapping-without-warrant
Many Americans and others who expected the results of the mid-
term congressional elections of 2007 to mean a rougher time for
President George W Bush are puzzled. How is it that the narrow
but decisive Democratic victory has done so little to cramp
the style of the headstrong Republican in the White House?
Of particular interest to our industry, why has the opposition
party shown itself so ineffective in the matter of the US telecoms
which shared subscriber information with the government,
in violation of laws governing confidentiality?
In fact, Democrats in the new and old Congress, both, have tried
earnestly to get the telecoms – and, by extension, the President
– to explain themselves. There was, and there continues to be,
sentiment in favour of retroactive immunity for the telecoms
among lawmakers of both parties. The real question is why the
Democrats’ effort to obtain relevant information has produced
so little.
To recap, on 2nd October 2007, the Energy and Commerce
Committee of the US House of Representatives, which has
jurisdiction over the telecommunications industry, sent letters to
three major domestic carriers – AT&T, Qwest,Verizon – requesting
disclosure of the extent to which they shared data on the calling
and Internet habits of private citizens with federal intelligence
agencies. The committee already had an inquiry under way into
such domestic surveillance efforts as the wiretapping-without-
warrant programme of the National Security Agency.
A member of the committee – Edward J Markey, of Massachusetts
– had pressed the Federal Communications Commission in
the matter for more than a year. The US Communications Act
prohibits telecom carriers from disclosing proprietary customer
information without customer approval, absent a court order
or other administrative order. In September, Mr Markey urged
the FCC chairman to open an inquiry into allegations that the
telecoms cooperated with government requests for data by
illegally sharing such information.
“As reports about government intelligence agencies running
roughshod over telecommunications privacy laws continue
to surface,” Mr Markey said, “I have grown more and more
concerned that the rights of consumers are being lost in the
shuffle.” Mr Markey’s renewed effort came as the Republican
administration pushed Congress to confer immunity on the
telecoms in lawsuits charging them with invasion of privacy.
House Democrats tied their consideration of such relief to full
government disclosure about the programme that the telecoms
are charged with aiding. The administration has resisted
subpoenas for such information.
Ellen Nakashima of the Washington Post noted the specificity
of the questions put by the lawmakers to the telecoms. Had
the carriers been asked to provide customer information
without [an administrative subpoena] or approval from a
special court under the Foreign Intelligence Surveillance Act?
If so, who asked them for the data? Did the firms object? Are
they currently providing any information to the government
without a FISA order? Have they ever been asked to install
equipment on their network to intercept Internet traffic or to
send such information to third parties?
Ms Nakashima also said the committee wanted to know
whether telecoms gave details on their customers’
‘communities of interest,’ or networks of people with whom
they were in contact. According to the Electronic Frontier
Foundation – a San Francisco-based non-profit committed
to the preservation of free speech rights in the digital age
– the Federal Bureau of Investigation (FBI) circumvented
established procedure to obtain such data. (‘Telecoms
Pressed on Surveillance,’ 3rd October)
Mr Bush to Congress: Grant liability protection
to cooperating telecoms, or face my veto
The Democrat-sponsored initiative outlined above is clearly a
good-faith effort to obtain the facts needed for an informed
debate on the culpability, if any, of the telecoms which
cooperated with the government. It falls well within the scope
of the oversight function assigned to the Congress by the US
Constitution. But the administration apparently believes that a
simple declaration supplies all the information Congress could
possibly need or want: to wit, telecom snooping is essential to
the government’s post-9/11 counterterrorism programme.
Mr Bush, pushing hard for immunity from civil suits for the
telecoms, on 10th October warned Congress that unless it
confers that protection retroactively he would not sign any new
bill into law. His argument is that multi-billion dollar lawsuits
arising from the once-secret eavesdropping programme could
bankrupt the telecoms, whose cooperation with the government
signifies patriotism rather than betrayal of their customers’ trust.
To be sure, the Democrats are reaping the results of the hasty
concessions they made shortly before Congress adjourned
for vacation last August. Fearful of the charge of softness on
terrorism, and despite grave misgivings about the scope of the
eavesdropping power of the executive branch, lawmakers of
both parties enacted the changes to the terrorism-surveillance
programme requested by the President – to be effective for the
six months to February 2008.
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