There’s been a lot of reports of odd goings on at various phone company data centers for awhile now, but yesterday USA Today broke the story on the U.S. Government’s secret phone call data collection program:
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.
Congratulations! We’re all suspected terrorists now. Not only that, but you’ve been a suspected terrorist since 2001.
“It’s the largest database ever assembled in the world,” said one person, who, like the others who agreed to talk about the NSA’s activities, declined to be identified by name or affiliation. The agency’s goal is “to create a database of every call ever made” within the nation’s borders, this person added.
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 interesting twist to this tale is that the three telecommunications companies could find themselves in a lot of hot water for going along with the NSA:
Such conduct appears to be illegal and could make the telco firms liable for tens of billions of dollars. Here’s why:
- It violates the Stored Communications Act. The Stored Communications Act, Section 2703(c), provides exactly five exceptions that would permit a phone company to disclose to the government the list of calls to or from a subscriber: (i) a warrant; (ii) a court order; (iii) the customer’s consent; (iv) for telemarketing enforcement; or (v) by “administrative subpoena.” The first four clearly don’t apply. As for administrative subpoenas, where a government agency asks for records without court approval, there is a simple answer – the NSA has no administrative subpoena authority, and it is the NSA that reportedly got the phone records.
- The penalty for violating the Stored Communications Act is $1000 per individual violation. Section 2707 of the Stored Communications Act gives a private right of action to any telephone customer “aggrieved by any violation.” If the phone company acted with a “knowing or intentional state of mind,” then the customer wins actual harm, attorney’s fees, and “in no case shall a person entitled to recover receive less than the sum of $1,000.”
(The phone companies might say they didn’t “know” they were violating the law. But USA Today reports that Qwest’s lawyers knew about the legal risks, which are bright and clear in the statute book.)
- The Foreign Intelligence Surveillance Act doesn’t get the telcos off the hook. According to USA Today, the NSA did not go to the FISA court to get a court order. And Qwest is quoted as saying that the Attorney General would not certify that the request was lawful under FISA. So FISA provides no defense for the phone companies, either.
In other words, for every 1 million Americans whose records were turned over to NSA, the telcos could be liable for $1 billion in penalties, plus attorneys fees. You do the math.
That would be such a shame. Would probably force all three of them into bankruptcy. So now not only has
KingPresident Bush declared you all to be possible terrorists he’s also responsible for putting a good chunk of the telecommunications industry at risk of financial ruin.
Please, won’t someone give Bush a blowjob so we can impeach him??