May 13, 2006
Questions Raised for Phone Giants in Spy Data Furor
By JOHN MARKOFF
NY Times
http://www.nytimes.com/2006/05/13/washington/13phone.html?_r=1&oref=slogin&pagewanted=print
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
