Telcos and the NSA: theories to explain the conflicting reports emerge
After the May 11th USA Today story by Leslie Cauley revealing that major telecoms cooperated with the NSA in its warrantless domestice surveillance program, Bell South demanded a retraction from USA Today, Verizon issued a carefully worded denial of the story, and AT&T reportedly insisted that it does not cooperate unless there’s a court order (there’s no press release or statement on their site, however). So what’s going on? I blogged about the confusion a bit here, but we’re still left with the question of whether the telecos cooperated with the warrantless NSA program or not, and if they did, did they break any laws?
With everyone denying the story, some sources have suggested that there might be a legal loophole that would have permitted the telecos to cooperate legally without a warrant.
Others have suggested other possible scenarios. Marc Shulman questioned whether the whole USA Today story might be part of a sting operation. Interesting hypothesis, but I’m more inclined to go along with the legal loophole or the implications of a story in yesterday’s BusinessWeek Online. That story reminds us that the government has been involved in buying commercial databases:
Buying commercially collected data allows the government to dodge certain privacy rules. The Privacy Act of 1974 restricts how federal agencies may use such information and requires disclosure of what the government is doing with it. But the law applies only when the government is doing the data collecting.
Discussing the story and its implications, Paul Kiel and Justin Rood, writing for TPMuckraker, note:
Rather than respond themselves to requests from the FBI and others, a telco can sign up with one of these companies, give them access to their call records and equipment, and let that third party do all the hard work.
Is it possible that the USA Today story was correct in that the NSA obtained records from these telecos but that the telecos didn’t provide the data directly to them, and hence, may be shielded legally from any civil suit? It certainly seems possible, although the “legal loophole” theory still sounds the most plausible to me. As always, time will tell.
