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Sat May 13 06:21:25 PDT 2006

<farber at cis.upenn.edu>
Subject: Questions Raised for Phone Giants in Spy Data Furor

>From the New York Times -- http://www.nytimes.com/2006/05/13/
washington/13phone.html?th&emc=th

Questions Raised for Phone Giants in Spy Data Furor
By JOHN MARKOFF

The former chief executive of Qwest, the nation's fourth-largest
phone company, rebuffed government requests for the company's calling
records after 9/11 because of "a disinclination on the part of the
authorities to use any legal process," his lawyer said yesterday.

The statement on behalf of the former Qwest executive, Joseph P.
Nacchio, followed a report that the other big phone companies  AT&T,
BellSouth and Verizon  had complied with an effort by the National
Security Agency to build a vast database of calling records, without
warrants, to increase its surveillance capabilities after the Sept.
11 attacks.

Those companies insisted yesterday that they were vigilant about
their customers' privacy, but did not directly address their
cooperation with the government effort, which was reported on
Thursday by USA Today. Verizon said that it provided customer
information to a government agency "only where authorized by law for
appropriately defined and focused purposes," but that it could not
comment on any relationship with a national security program that was
"highly classified."

Legal experts said the companies faced the prospect of lawsuits
seeking billions of dollars in damages over cooperation in the
program, citing communications privacy legislation stretching back to
the 1930's. A federal lawsuit was filed in Manhattan yesterday
seeking as much as $50 billion in civil damages against Verizon on
behalf of its subscribers.

For a second day, there was political fallout on Capitol Hill, where
Senate Democrats intend to use next week's confirmation hearings for
a new C.I.A. director to press the Bush administration on its broad
surveillance programs.

As senior lawmakers in Washington vowed to examine the phone database
operation and possibly issue subpoenas to the telephone companies,
executives at some of the companies said they would comply with
requests to appear on Capitol Hill but stopped short of describing
how much would be disclosed, at least in public sessions.

"If Congress asks us to appear, we will appear," said Selim Bingol, a
spokesman at AT&T. "We will act within the laws and rules that apply."

Qwest was apparently alone among the four major telephone companies
to have resisted the requests to cooperate with the government
effort. A statement issued on behalf of Mr. Nacchio yesterday by his
lawyer, Herbert J. Stern, said that after the government's first
approach in the fall of 2001, "Mr. Nacchio made inquiry as to whether
a warrant or other legal process had been secured in support of that
request."

"When he learned that no such authority had been granted, and that
there was a disinclination on the part of the authorities to use any
legal process," Mr. Nacchio concluded that the requests violated
federal privacy requirements "and issued instructions to refuse to
comply."

The statement said the requests continued until Mr. Nacchio left in
June 2002. His departure came amid accusations of fraud at the
company, and he now faces federal charges of insider trading.

The database reportedly assembled by the security agency from calling
records has dozens of fields of information, including called and
calling numbers and the duration of calls, but nothing related to the
substance of the calls. But it could permit what intelligence
analysts and commercial data miners refer to as "link analysis," a
statistical technique for investigators to identify calling patterns
in a seemingly impenetrable mountain of digital data.

The law governing the release of phone company data has been modified
repeatedly to grapple with changing computer and communications
technologies that have increasingly bedeviled law enforcement
agencies. The laws include the Communications Act, first passed in
1934, and a variety of provisions of the Electronic Communications
and Privacy Act, including the Stored Communications Act, passed in
1986.

Wiretapping  actually listening to phone calls  has been tightly
regulated by these laws. But in general, the laws have set a lower
legal standard required by the government to obtain what has
traditionally been called pen register or trap-and-trace information
calling records obtained when intelligence and police agencies
attached a specialized device to subscribers' telephone lines.

Those restrictions still hold, said a range of legal scholars, in the
face of new computer databases with decades' worth of calling
records. AT&T created such technology during the 1990's for use in
fraud detection and has previously made such information available to
law enforcement with proper warrants.

Orin Kerr, a former federal prosecutor and assistant professor at
George Washington University, said his reading of the relevant
statutes put the phone companies at risk for at least $1,000 per
person whose records they disclosed without a court order.

"This is not a happy day for the general counsels" of the phone
companies, he said. "If you have a class action involving 10 million
Americans, that's 10 million times $1,000 that's 10 billion."

The New Jersey lawyers who filed the federal suit against Verizon in
Manhattan yesterday, Bruce Afran and Carl Mayer, said they would
consider filing suits against BellSouth and AT&T in other jurisdictions.

"This is almost certainly the largest single intrusion into American
civil liberties ever committed by any U.S. administration," Mr. Afran
said. "Americans expect their phone records to be private. That's our
bedrock governing principle of our phone system." In addition to
damages, the suit seeks an injunction against the security agency to
stop the collection of phone numbers.

Several legal experts cited ambiguities in the laws that may be used
by the government and the phone companies to defend the National
Security Agency program.

"There's a loophole," said Mark Rasch, the former head of computer-
crime investigations for the Justice Department and now the senior
vice president of Solutionary, a computer security company. "Records
of phones that have called each other without identifying information
are not covered by any of these laws."

Civil liberties lawyers were quick to dispute that claim.

"This is an incredible red herring," said Kevin Bankston, a lawyer
for the Electronic Frontier Foundation, a privacy rights group that
has sued AT&T over its cooperation with the government, including
access to calling records. "There is no legal process that
contemplates getting entire databases of data."

The group sued AT&T in late January, contending that the company was
violating the law by giving the government access to its customer
call record data and permitting the agency to tap its Internet
network. The suit followed reports in The New York Times in December
that telecommunications companies had cooperated with such government
requests without warrants.

A number of industry executives pointed to the national climate in
the wake of the Sept. 11 attacks to explain why phone companies might
have risked legal entanglement in cooperating with the requests for
data without warrants.

An AT&T spokesman said yesterday that the company had gotten some
calls and e-mail messages about the news reports, but characterized
the volume as "not heavy" and said there were responses on both sides
of the issue.

Reaction around the country also appeared to be divided.

Cathy Reed, 45, a wealth manager from Austin, Tex., who was visiting
Boston, said she did not see a problem with the government's
reviewing call logs. "I really don't think it matters," she said. "I
bet every credit card company already has them."

Others responded critically. Pat Randall, 63, a receptionist at an
Atlanta high-rise, said, "Our phone conversations are just personal,
and to me, the phone companies that cooperated, I think we should
move our phone services to the company that did not cooperate."

While the telephone companies have both business contracts and
regulatory issues before the federal government, executives in the
industry yesterday dismissed the notion that they felt pressure to
take part in any surveillance programs. The small group of executives
with the security clearance necessary to deal with the government on
such matters, they said, are separate from the regulatory and
government contracting divisions of the companies.

Reporting for this article was contributed by Ken Belson, Brenda
Goodman, Stephen Labaton, Matt Richteland Katie Zezima.

Copyright 2006 The New York Times Company
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