No FCC Action on Allegations NSA Investigated Non-suspects

On the recommendation of the US Director of National Intelligence, the chairman of the Federal Communications Commission last week declined to open an investigation into evidence that the National Security Agency may have received more information from US telecommunications carriers than it actually requested, in conjunction with federal terrorism investigations, and that it may have investigated innocent civilians as a result.

"The Director of National Intelligence concluded that the United States '[has] consistently asserted the military and state secrets privilege in litigation concerning allegations of an alleged NSA records program,"' cites FCC Chairman Kevin Martin's quote of Director J. M. McConnell, "because disclosures regarding such intelligence activities could cause 'exceptionally grave damage to the national security."'

Martin's reply came in a letter to Rep. Edward Markey (D - Mass.), chairman of the House Subcommittee on Telecommunications and the Internet. Rep. Markey pressed Martin to look further the cause of apparent transgressions of wiretapping regulations revealed in a March report from the FBI Inspector General.

Markey is concerned about the possibility, and perhaps the likelihood, that AT&T, Qwest, and Verizon responded to so-called "National Security Letters" sent to them by the NSA, by turning over not only the information they sought but far more than they actually requested. He expressed that concern in letters to the three carriers' CEOs last week.

"Section 222 of the Communications Act of 1934 prohibits telecommunications carriers from disclosing proprietary customer information, except as required by law or with the customer's approval," reads one letter sent last Tuesday by Rep. Markey to AT&T CEO Randall Stephenson.

"There is no exception in Section 222, or in the regulations of the Federal Communications Commission implementing that section, permitting telecommunications carriers to disclose customer records absent a court or other administrative order or customer approval for purposes of government intelligence gathering or any other similar purpose."

Just a week prior to that letter, District Judge Ann Aiken ruled the Foreign Intelligence Surveillance Act -- the law authorizing the NSA to send such requests to carriers for customer information -- unconstitutional, because in her words, it "now permits the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment."

But as FCC Chairman Martin says he was told by Director McConnell, an investigation into what information the NSA may have been given that did not pertain to national security threats, might inadvertently unveil information that does pertain. "Because an FCC investigation into these allegations would...necessarily entail those types of disclosures," Martin quotes McConnell as having written, "it is our view that such an investigation would pose an unnecessary risk of damage to the national security."

In a public statement last Friday, Rep. Markey expressed disappointment. "I still hold that it is well within the authority of the independent agency responsible for the enforcement of our nation's communications privacy laws to investigate the very serious reports," he wrote, "that the intelligence agencies were using telephone companies to obtain phone records and Internet data on citizens without proper, prior authorization. I believe the agency could conduct its own examination of such reports in a way that safeguards national security.

"But the real roadblock here continues to be the Bush administration," he continued. "The letter to the FCC from the Director of National Intelligence is unsurprising given that this administration has continually thwarted efforts by Congress to shed more light on the surveillance program."