wider spying fuels aid plan for telecom industry

[Eugen Leitl]

http://www.nytimes.com/2007/12/16/washington/16nsa.html?ei=5088&en=e6aa872194ef69e8&ex=1355461200&partner=rssnyt&emc=rss&pagewanted=print

December 16, 2007

Wider Spying Fuels Aid Plan for Telecom Industry

By ERIC LICHTBLAU, JAMES RISEN and SCOTT SHANE

This article is by Eric Lichtblau, James Risen and Scott Shane.

WASHINGTON b For months, the Bush administration has waged a high-profile
campaign, including personal lobbying by President Bush and closed-door
briefings by top officials, to persuade Congress to pass legislation
protecting companies from lawsuits for aiding the National Security Agencybs
warrantless eavesdropping program.

But the battle is really about something much bigger. At stake is the federal
governmentbs extensive but uneasy partnership with industry to conduct a wide
range of secret surveillance operations in fighting terrorism and crime.

The N.S.A.bs reliance on telecommunications companies is broader and deeper
than ever before, according to government and industry officials, yet that
alliance is strained by legal worries and the fear of public exposure.

To detect narcotics trafficking, for example, the government has been
collecting the phone records of thousands of Americans and others inside the
United States who call people in Latin America, according to several
government officials who spoke on the condition of anonymity because the
program remains classified. But in 2004, one major phone carrier balked at
turning over its customersb records. Worried about possible privacy
violations or public relations problems, company executives declined to help
the operation, which has not been previously disclosed.

In a separate N.S.A. project, executives at a Denver phone carrier, Qwest,
refused in early 2001 to give the agency access to their most localized
communications switches, which primarily carry domestic calls, according to
people aware of the request, which has not been previously reported. They say
the arrangement could have permitted neighborhood-by-neighborhood
surveillance of phone traffic without a court order, which alarmed them.

The federal governmentbs reliance on private industry has been driven by
changes in technology. Two decades ago, telephone calls and other
communications traveled mostly through the air, relayed along microwave
towers or bounced off satellites. The N.S.A. could vacuum up phone, fax and
data traffic merely by erecting its own satellite dishes. But the fiber
optics revolution has sent more and more international communications by land
and undersea cable, forcing the agency to seek company cooperation to get
access.

After the disclosure two years ago that the N.S.A. was eavesdropping on the
international communications of terrorism suspects inside the United States
without warrants, more than 40 lawsuits were filed against the government and
phone carriers. As a result, skittish companies and their lawyers have been
demanding stricter safeguards before they provide access to the government
and, in some cases, are refusing outright to cooperate, officials said.

bItbs a very frayed and strained relationship right now, and thatbs not a
good thing for the country in terms of keeping all of us safe,b said an
industry official who believes that immunity is critical for the phone
carriers. bThis episode has caused companies to change their conduct in a
variety of ways.b

With a vote in the Senate on the issue expected as early as Monday, the Bush
administration has intensified its efforts to win retroactive immunity for
companies cooperating with counterterrorism operations.

bThe intelligence community cannot go it alone,b Mike McConnell, the director
of national intelligence, wrote in a New York Times Op-Ed article Monday
urging Congress to pass the immunity provision. bThose in the private sector
who stand by us in times of national security emergencies deserve thanks, not
lawsuits.b

Attorney General Michael B. Mukasey echoed that theme in an op-ed article of
his own in The Los Angeles Times on Wednesday, saying private companies would
be reluctant to provide their bfull-hearted helpb if they were not given
legal protections.

The governmentbs dependence on the phone industry, driven by the changes in
technology and the Bush administrationbs desire to expand surveillance
capabilities inside the United States, has grown significantly since the
Sept. 11 attacks. The N.S.A., though, wanted to extend its reach even
earlier. In December 2000, agency officials wrote a transition report to the
incoming Bush administration, saying the agency must become a bpowerful,
permanent presenceb on the commercial communications network, a goal that
they acknowledged would raise legal and privacy issues.

While the N.S.A. operates under restrictions on domestic spying, the
companies have broader concerns b customersb demands for privacy and
shareholdersb worries about bad publicity.

In the drug-trafficking operation, the N.S.A. has been helping the Drug
Enforcement Administration in collecting the phone records showing patterns
of calls between the United States, Latin America and other drug-producing
regions. The program dates to the 1990s, according to several government
officials, but it appears to have expanded in recent years.

Officials say the government has not listened to the communications, but has
instead used phone numbers and e-mail addresses to analyze links between
people in the United States and overseas. Senior Justice Department officials
in the Bush and Clinton administrations signed off on the operation, which
uses broad administrative subpoenas but does not require court approval to
demand the records.

At least one major phone carrier b whose identity could not be confirmed b
refused to cooperate, citing concerns in 2004 that the subpoenas were overly
broad, government and industry officials said. The executives also worried
that if the program were exposed, the company would face a public-relations
backlash.

The D.E.A. declined to comment on the call-tracing program, except to say
that it bexercises its legal authorityb to issue administrative subpoenas.
The N.S.A. also declined to comment on it.

In a separate program, N.S.A. officials met with the Qwest executives in
February 2001 and asked for more access to their phone system for
surveillance operations, according to people familiar with the episode. The
company declined, expressing concerns that the request was illegal without a
court order.

While Qwestbs refusal was disclosed two months ago in court papers, the
details of the N.S.A.bs request were not. The agency, those knowledgeable
about the incident said, wanted to install monitoring equipment on Qwestbs
bClass 5b switching facilities, which transmit the most localized calls.
Limited international traffic also passes through the switches.

A government official said the N.S.A. intended to single out only foreigners
on Qwestbs network, and added that the agency believed Joseph Nacchio, then
the chief executive of Qwest, and other company officials misunderstood the
agencybs proposal. Bob Toevs, a Qwest spokesman, said the company did not
comment on matters of national security.

Other N.S.A. initiatives have stirred concerns among phone company workers. A
lawsuit was filed in federal court in New Jersey challenging the agencybs
wiretapping operations. It claims that in February 2001, just days before
agency officials met with Qwest officials, the N.S.A. met with AT&T officials
to discuss replicating a network center in Bedminster, N.J., to give the
agency access to all the global phone and e-mail traffic that ran through it.

The accusations rely in large part on the assertions of a former engineer on
the project. The engineer, who spoke on the condition of anonymity, said in
an interview that he participated in numerous discussions with N.S.A.
officials about the proposal. The officials, he said, discussed ways to
duplicate the Bedminster system in Maryland so the agency bcould listen inb
with unfettered access to communications that it believed had intelligence
value and store them for later review. There was no discussion of limiting
the monitoring to international communications, he said.

bAt some point,b he said, bI started feeling something isnbt right.b

Two other AT&T employees who worked on the proposal discounted his claims,
saying in interviews that the project had simply sought to improve the
N.S.A.bs internal communications systems and was never designed to allow the
agency access to outside communications. Michael Coe, a company spokesman,
said: bAT&T is fully committed to protecting our customersb privacy. We do
not comment on matters of national security.b

But lawyers for the plaintiffs say that if the suit were allowed to proceed,
internal AT&T documents would verify the engineerbs account.

bWhat he saw,b said Bruce Afran, a New Jersey lawyer representing the
plaintiffs along with Carl Mayer, bwas decisive evidence that within two
weeks of taking office, the Bush administration was planning a comprehensive
effort of spying on Americansb phone usage.b

The same lawsuit accuses Verizon of setting up a dedicated fiber optic line
from New Jersey to Quantico, Va., home to a large military base, allowing
government officials to gain access to all communications flowing through the
carrierbs operations center. In an interview, a former consultant who worked
on internal security said he had tried numerous times to install safeguards
on the line to prevent hacking on the system, as he was doing for other lines
at the operations center, but his ideas were rejected by a senior security
official.

The facts behind a class-action lawsuit in San Francisco are also shrouded in
government secrecy. The case relies on disclosures by a former AT&T employee,
Mark Klein, who says he stumbled upon a secret room at an company facility in
San Francisco that was reserved for the N.S.A. Company documents he obtained
and other former AT&T employees have lent some support to his claim that the
facility gave the agency access to a range of domestic and international
Internet traffic.

The telecommunications companies that gave the government access are pushing
hard for legal protection from Congress. As part of a broader plan to
restructure the N.S.A.bs wiretapping authority, the Senate Intelligence
Committee agreed to give immunity to the telecommunications companies, but
the Judiciary Committee refused to do so. The White House has threatened to
veto any plan that left out immunity, as the House bill does.

bCongress shouldnbt grant amnesty to companies that broke the law by
conspiring to illegally spy on Americansb said Kate Martin, director of the
Center for National Security Studies in Washington.

But Bobby R. Inman, a retired admiral and former N.S.A. director who has
publicly criticized the agencybs domestic eavesdropping program, says he
still supports immunity for the companies that cooperated.

bThe responsibility ought to be on the government, not on the companies that
are trying to help with national security requirements,b Admiral Inman said.
If the companies decided to stop cooperating, he added, bit would have a huge
impact on both the timeliness and availability of critical intelligence.b