Thursday, May 11, 2006

Listen Up

Via AMERICAblog, USA Today is reporting that the NSA has been getting phone records of just about everybody.

The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.

The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren’t suspected of any crime. This program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.


For the customers of these companies, it means that the government has detailed records of calls they made — across town or across the country — to family members, co-workers, business contacts and others.

The three telecommunications companies are working under contract with the NSA, which launched the program in 2001 shortly after the Sept. 11 terrorist attacks, the sources said. The program is aimed at identifying and tracking suspected terrorists, they said.

The sources would talk only under a guarantee of anonymity because the NSA program is secret.

Air Force Gen. Michael Hayden, nominated Monday by President Bush to become the director of the CIA, headed the NSA from March 1999 to April 2005. In that post, Hayden would have overseen the agency’s domestic call-tracking program. Hayden declined to comment about the program.

So much for President Bush’s claim that the warrantless wiretapping program was only for international calls — “If you’re talking to al-Qaeda, we want to know about it,” and other such howlers. And it appears that such a program is in violation of several federal laws.

The NSA’s domestic program raises legal questions. Historically, AT&T and the regional phone companies have required law enforcement agencies to present a court order before they would even consider turning over a customer’s calling data. Part of that owed to the personality of the old Bell Telephone System, out of which those companies grew.

Ma Bell’s bedrock principle — protection of the customer — guided the company for decades, said Gene Kimmelman, senior public policy director of Consumers Union. “No court order, no customer information — period. That’s how it was for decades,” he said.

The concern for the customer was also based on law: Under Section 222 of the Communications Act, first passed in 1934, telephone companies are prohibited from giving out information regarding their customers’ calling habits: whom a person calls, how often and what routes those calls take to reach their final destination. Inbound calls, as well as wireless calls, also are covered.

The financial penalties for violating Section 222, one of many privacy reinforcements that have been added to the law over the years, can be stiff. The Federal Communications Commission, the nation’s top telecommunications regulatory agency, can levy fines of up to $130,000 per day per violation, with a cap of $1.325 million per violation. The FCC has no hard definition of “violation.” In practice, that means a single “violation” could cover one customer or 1 million.

No one in their right mind has voiced the opinion that wiretapping in pursuit of law enforcement is wrong as long as it is done legally; obtaining probable cause and obtaining a warrant, procedures for the which the FISA law was created and has generous provisions for leeway in obtaining said warrants. But this is way beyond that, and even if they weren’t actually listening in on the calls, the idea that the NSA would go to the phone companies and that the phone companies — with the notable exception of Qwest (good old Mountain Bell) — would go along with it proves that we have really gotten to the point of government intrusion into the private lives of its citizens on a scale that not even the most paranoid of the tin-foil-hat brigade could imagine in their most non-medicated fevered dreams. It reminds me of the 1967 film The President’s Analyst, a satire in which the true enemy of the USA isn’t the USSR or the KGB or even the CIA, it’s TPC — The Phone Company.

It will be interesting to see how the right-wingers whose mantra is “limited government and more freedom” defend this one with a straight face.

Update: Glenn Greenwald discusses the legal aspects of this case at Unclaimed Territory.