How Verizon Turned Over Surveillance Documents Without Court Order

Of the three major telecommunications companies sent questionnaires two weeks ago by leaders of the US House Committee on Energy and Commerce, only Verizon answered in detail, with AT&T and Qwest citing pending lawsuits as their reason for declining. Those questionnaires were intended to determine these companies' understanding of federal law as it was explained to them, and how they believe they're complying with the law, in cases where national security officials seek private customer data without a court order.

Currently, the Foreign Intelligence Surveillance Act permits information from communications of non-US citizens to be collected without court order. However, in recent years, the Dept. of Justice and the National Security Agency have made numerous requests for customer data citing FISA as legal foundation, even though the citizenship status of individuals being investigated is unclear.

Verizon, AT&T, and Qwest were believed to have complied with federal agency directives, and last Friday, Verizon confirmed in a letter to the Commerce Committee that it did indeed turn over data to federal officials in approximately 720 separate cases since January 2005.

Verizon then contrasted that number against approximately 63,000 emergency requests by state and local law enforcement officials nationwide over that same period. But that number came in response to a question regarding whether the company complies with requests for information that do not go through the FISA process, indicating that federal officials may be bypassing the route that lawmakers believed to have been the route of choice.

The company also said it received approximately 94,000 separate requests since January 2005 for customer information from federal officials, in compliance with federal laws, for information probably pertaining to everyday investigations. Some of those cases authorized the use of wiretapping, and others were compulsory requests to divulge stored records on customer communications.

But those requests do not invoke FISA, and instead rely upon federal statutes for counterintelligence measures. Such statutes refer directly to court-issued warrants and judge's orders, such as 18 U.S.C. 2703, to which Verizon pointed.

"A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant."

A key counterintelligence law, writes Verizon Senior Vice President Randall S. Milch, "authorizes the FBI to issue National Security Letters ('NSLs') for specified customer information or records. That provision does not address wiretaps, and Verizon has not provided assistance to the government to conduct a wiretap based on an NSL."

So when the federal government issues a request for customer information that doesn't appear to follow FISA or 18 U.S.C. 2703, or any of the other statutes that clearly require court warrants or orders, the Commerce Committee letter asked, does Verizon feel compelled at any time to point that problem out to the government agency making the request?

"No, for a number of important reasons," Milch responded. "Congress has properly enacted a number of protections for telecommunications providers that assist the government. For example, current law states that a telecommunications provider may not be sued for providing assistance to the government, in accordance with the terms of a subpoena, government certification, court order or warrant, among other things...These statutory provisions are consistent with longstanding common law principles, which allow citizens to rely on the government's judgment when it asks for assistance."

In a very peculiar way, AT&T declined to answer the questionnaire directly, implying to the Commerce Committee last week that the information it seeks is being controlled by some other authority.

"We understand and respect your interest in the subjects about which you inquire," responded AT&T Executive Vice President Wayne Watts. "Unfortunately, under current circumstances, we are unable to respond with specificity to your inquiries. That is because, on many issues that appear to be of central concern to you, responsive information, if any, is within the control of the executive branch. For example, if such information were to exist, AT&T could not lawfully furnish classified information in this response. Indeed, we are not in a position even to confirm or deny the existence of any underlying facts or information that would be responsive to your requests that could be considered classified."

It was a nine-page explanation that AT&T sent, however, which included a defense of the state secrets privilege of chief executives. By contrast, Verizon's response - though carefully worded - never implied that the company was asked any question that could be considered breaching state secrecy.

Qwest's response, meanwhile, was far shorter, citing a federal lawsuit in California as the reason for its lack of participation. There, ironically, the company is being sued by the federal government, which is seeking information regarding whether Qwest illegally divulged information to the New Jersey Attorney General's office without a court order.

As the Washington Post reported yesterday, Qwest's former CEO - recently convicted in an insider trading scheme - implied that his entire indictment may have come in retribution for his company's refusal to comply with National Security Agency requests for customer information without a court order.

Last night, House Commerce Committee Chairman John Dingell (D - Mich.) issued a statement saying he may take AT&T's implied suggestion to heart. "After reviewing the thoughtful responses of the phone companies to our inquiries about the Administration's NSA program," Rep. Dingell wrote, "I am now convinced that the Administration -- as the sponsor of this program and the party preventing the companies from defending themselves -- is the entity best able to resolve the many outstanding issues."

Questionnaire co-author Rep. Ed Markey (D - Mass.) was a bit more direct: "The responses from these telecommunication companies highlight the need for Congress to continue pressing the Bush administration for answers," Rep. Markey wrote. "The water is as murky as ever on this issue and it's past time for the administration to come clean."

Update ribbon (small)

4:15 pm ET October 16, 2007 - Late this morning, Verizon Wireless - which is part-owned by Verizon, part by Vodafone - released a statement saying it has notified its customers it will share its customer data with its parent companies, unless they choose to opt out explicitly.

"Specifically, the notice sent to customers is an advance notice that Verizon Wireless may share basic customer information with our parent companies," reads the company's statement this afternoon. "This notice, following rules set forth by the Federal Communications Commission (FCC), gives customers who do not want that information shared with our telecommunications affiliates the option of telling us by 'opting out.' The FCC has rules which state specifically that opt-out is the way to share information and provide certain required language, which we followed."

The statement closed by saying the company will continue to work vigorously to fight for the privacy rights of its customers.

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