EoW March 2008

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 16 th 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.” 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 2 nd 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. Congress versus the White House on wiretapping-without-warrant

“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,’ 3 rd 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 10 th 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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EuroWire – March 2008