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Context of 'February 5, 2006: Telecommunications Firms Confirm Cooperation with NSA’s Warrantless Wiretapping Program'

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Verizon gives the NSA access from within its facilities.Verizon gives the NSA access from within its facilities. [Source: ReallyNews.com]AT&T, Verizon, and BellSouth all cooperate with the NSA in monitoring US citizens’ phone and Internet communications (see October 2001). Qwest, however, refuses to cooperate (see February 27, 2001). Qwest officials are unsure that it is legal to hand over customer information to the government without court warrants. The firm’s refusal to participate in the program leaves a gaping hole in the NSA’s database, with the NSA only getting partial coverage of US citizens in the West and Northwest. Until recently, AT&T and other phone companies have routinely insisted on court warrants before turning over call data to government agencies, protocols growing out of the historical concerns of the Bell Telephone system for customer service and privacy. Gene Kimmelman of the Consumers Union will say in 2006 that such insistence on court warrants was a bedrock principle of the Bell systems. “No court order, no customer information—period.” he says. “That’s how it was for decades.” The Bell system was also concerned with following the law, specifically the Communications Act of 1934, which prohibits telephone companies from giving out such information without court orders. President Bush and other government officials will later say that his 2002 executive order allowing the NSA to wiretap American phones without warrants (see Early 2002) gives the telephone companies legal cover, but many legal experts and civil liberties groups disagree. After 9/11, the NSA approaches the four companies with offers to pay for US citizens’ call histories and for updates, which would allow the agency to track citizens’ phone habits. Three of the four agree to the NSA proposal, but again Qwest does not. An AT&T spokesman will say in May 2006, “We do not comment on matters of national security, except to say that we only assist law enforcement and government agencies charged with protecting national security in strict accordance with the law.” BellSouth will say that the company “does not provide any confidential customer information to the NSA or any governmental agency without proper legal authority.” Verizon will add that the company acts “in full compliance with the law and we are committed to safeguarding our customers’ privacy.” Neither AT&T nor Qwest will comment at all. [USA Today, 5/11/2006] The NSA asks Qwest to install monitoring equipment on its “Class 5” switching facilities, which monitor the most localized calls as well as some international traffic. The NSA claims it will only single out foreigners on Qwest’s network. In 2006, a government official will say that the CEO of Qwest, Joe Nacchio, misunderstood what the agency was asking. [New York Times, 12/16/2007]
Qwest Refuses to Cooperate - In 2006, sources will recall that at the time of the NSA requests, Nacchio is so disturbed by the idea of the NSA wiretapping phones without warrants, and is so unsure of what information would be collected and how it might be used, that he decides the company will not cooperate. The NSA tells Qwest and the other companies that not only would it compile and maintain data on US citizens’ phone habits, but it may well share that information with other US government agencies, including the CIA, the Drug Enforcement Administration, and the FBI. Indeed, the NSA shares what it calls “product” with other intelligence agencies, and perhaps with other governmental agencies. After Nacchio decides not to comply with the NSA’s request, the agency begins pressuring the firm, accusing it of threatening national security and implying that Qwest might not be eligible for future governmental contracts. When Qwest asks the NSA to take its proposal to the FISA Court (FISC), the agency refuses, making Qwest that much more dubious about the NSA operation, especially when NSA lawyers say they won’t take the proposal to FISC because that court “might not agree with them.” The NSA also refuses to ask for authorization from the attorney general’s office. Nacchio will leave Qwest under fire for allegedly misleading shareholders about the company’s financial prospects, but his successor, Richard Notebaert, continues to refuse to cooperate with the NSA. [USA Today, 5/11/2006; USA Today, 5/11/2006] Interestingly, by 2004 the Federal Communications Commission will list Qwest and Verizon as essentially the same company. [Federal Communications Commission, 12/10/2004]
Other Firms Deny Participation - In May 2006, after USA Today reports on the telecom firms’ participation in the surveillance (see May 11, 2006), both Verizon and BellSouth will deny providing the NSA with data on their customers, though they have previously acknowledged their cooperation (see February 5, 2006). A BellSouth spokesman will say, somewhat ingenuously, “We’re not aware of any database that NSA has, so we’re not aware of our customer information being there at all.” And Verizon conspicuously fails to mention possible data from MCI, the long-distance provider it has recently bought. Senator Patrick Leahy (D-VT) will say of the various companies’ participations, “The thing that concerns me is some [companies] said yes and some said no” when asked to participate. “If the government really thought this was legal and necessary, why let some say yes and some say no? It’s either legal and necessary, or it’s not.” [USA Today, 5/16/2006]

Entity Tags: Patrick J. Leahy, Qwest, Richard Notebaert, Verizon Communications, National Security Agency, USA Today, George W. Bush, Joe Nacchio, Foreign Intelligence Surveillance Court, BellSouth, Central Intelligence Agency, AT&T, Consumers Union, Federal Bureau of Investigation, Drug Enforcement Administration, Gene Kimmelman, Federal Communications Commission

Timeline Tags: Civil Liberties

Former AT&T employee Mark Klein.Former AT&T employee Mark Klein. [Source: PBS]The National Security Agency, as part of its huge, covert, and possibly illegal wiretapping program directed at US citizens (see Spring 2001 and After September 11, 2001), begins collecting telephone records of tens of millions of Americans, using data provided by telecommunications firms such as AT&T, Verizon, and BellSouth (see February 5, 2006). The media will not report on this database until May 2006 (see May 11, 2006). The program collects information on US citizens not suspected of any crime or any terrorist connections. Although informed sources say the NSA is not listening to or recording actual conversations, the agency is using the data to analyze calling patterns in an effort to detect terrorist activity. “It’s the largest database ever assembled in the world,” says one anonymous source. The NSA intends “to create a database of every call ever made.” As a result, the NSA has detailed records of the phone activities of tens of millions of US citizens, from local calls to family and friends to international calls. The three telecommunications companies are working with the NSA in part under the Communications Assistance Act for Law Enforcement (CALEA) (see January 1, 1995 and June 13, 2006) and in part under contract to the agency.
Surveillance Much More Extensive Than Acknowledged - The wiretapping program, which features electronic surveillance of US citizens without court warrants or judicial oversight, is far more extensive than anything the White House or the NSA has ever publicly acknowledged. President Bush will repeatedly insist that the NSA focuses exclusively on monitoring international calls where one of the call participants is a known terrorist suspect or has a connection to terrorist groups (see December 17, 2005 and May 11, 2006), and he and other officials always insist that domestic calls are not monitored. This will be proven false. The NSA has become expert at “data mining,” sifting through reams of information in search of patterns. The warrantless wiretapping database is one source of information for the NSA’s data mining. As long as the NSA does not collect “personal identifiers”—names, Social Security numbers, street addresses, and the like—such data mining is legal. But the actual efficacy of the wiretapping program in learning about terrorists and possibly preventing terrorist attacks is unclear at best. And many wonder if the NSA is not repeating its activities from the 1950s and 1960s, when it conducted “Operation Shamrock” (see 1945-1975), a 20-year program of warrantless wiretaps of international phone calls at the behest of the CIA and other intelligence agencies. Operation Shamrock, among other things, led to the 1978 passage of the Foreign Intelligence Surveillance Act (see 1978). [USA Today, 5/11/2006] In May 2006, former NSA director Bobby Ray Inman will say, “[T]his activity is not authorized” (see May 12, 2006). [Democracy Now!, 5/12/2006]
Secret Data Mining Center - In May 2006, retired AT&T technician Mark Klein, a 22-year veteran of the firm, will file a court affidavit saying that he saw the firm construct a secret data-mining center in its San Francisco switching center that would let the NSA monitor domestic and international communications (see January 2003). And former AT&T workers say that, as early as 2002, AT&T has maintained a secret area in its Bridgeton, Missouri, facility that is likely being used for NSA surveillance (see Late 2002-Early 2003).
Domestic Surveillance Possibly Began Before 9/11 - Though Bush officials admit to beginning surveillance of US citizens only after the 9/11 attacks, some evidence indicates that the domestic surveillance program began some time before 9/11 (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001).

Entity Tags: Terrorist Surveillance Program, Verizon Communications, Mark Klein, George W. Bush, AT&T, BellSouth, Central Intelligence Agency, Communications Assistance for Law Enforcement Act (CALEA), Foreign Intelligence Surveillance Act, Qwest, National Security Agency

Timeline Tags: Civil Liberties

Seven telecommunications executives confirm to the press that large telecommunications companies such as AT&T, MCI, and Sprint have cooperated with the National Security Agency’s domestic warrantless wiretapping program. Those firms, along with BellSouth, previously denied they had cooperated with the NSA (see October 2001). In typical domestic investigations, telecom companies require court warrants before mounting any surveillance operations, but this has not been the case with the NSA program. Apparently, the companies decided to assist the NSA in tracking international telephone and Internet communications to and from US citizens and routed through “switches” which handle millions of communications, both domestic and international, every day. The telecom firms in question have undergone several mergers and reorganizations—BellSouth, another firm accused of cooperating with the NSA, is now part of AT&T, MCI (formerly WorldCom) was recently acquired by Verizon, and Sprint has merged with Nextel. The companies comply with the NSA requests for information once the NSA determines that there is a “reasonable basis” for believing that the communications may have a connection with militant Islamic organizations such as al-Qaeda. The firms do not require court warrants, but rather implement the monitoring on nothing more than oral requests from senior NSA officials. [USA Today, 2/5/2006]

Entity Tags: National Security Agency, MCI, WorldCom, Al-Qaeda, AT&T, Verizon Wireless, Sprint/Nextel

Timeline Tags: Civil Liberties

President George Bush issues a memo granting the Director of National Intelligence (DNI) the authority to authorize a corporation to conceal any of its activities related to national security under United States Code 15 USC 78m(b)(3)(A). [US Code Title 15,78m; George W. Bush, 5/5/2006] The memo follows recent allegations that telecommunications firms AT&T, BellSouth, and Verizon have all provided records of US citizens’ telephone communications to the National Security Agency as part of the NSA’s warrantless surveillance program (see October 2001 and February 5, 2006). Almost two months later, Representative Jan Schakowsky (D-IL) learns of the memo and demands an explanation from DNI John Negroponte. Schakowsky will write in part: “I am concerned about this new authority because under it, the DNI does not need to seek any permission from the president or Congress to issue such directives and there is minimal oversight once the directive is given. In fact, it is my understanding that since the DNI is only required to report on directives ‘active’ on the annual October 1st reporting date, the DNI could in fact cover up all directives by having them expire on September 30th of the reporting year. I believe that such expansive authority coupled with lax oversight could lead to the misuse of the power, the over-issuing of directives, and the hiding of activities that could be unconstitutional and violations of citizens’ civil liberties. For instance, I believe that such directives could have been issued to the major telecommunications firms concerning the sharing of phone call records with the National Security Agency without citizens’ knowledge or consent.” Schakowsky asks if there was “a particular corporate activity that the DNI or another believed warranted such protection from disclosure and liability,” how many such directives his office has issued since he was granted such authority, whether any such directives were retroactive, how it is determined that “national security” matters are at stake and who makes such determinations, and whether directives telecommunications firms provide citizens’ phone records without their knowledge or consent are being “covered up.” Negroponte’s reply to Schakowsky, if any, is not known. [Jan Schakowsky, 6/27/2006]

Entity Tags: National Security Agency, Verizon Communications, John Negroponte, George W. Bush, BellSouth, Jan Schakowsky, AT&T

Timeline Tags: Civil Liberties

Admiral Mike McConnell, the director of national intelligence, admits during a radio interview that the main issue over the renewal of the Protect America Act (PAA) (see August 5, 2007) is not the security and safety of the nation, but the need to extend liability immunity to the nation’s telecommunications firms. In recent days, President Bush has said that unnamed terrorists are planning attacks on the US that will make 9/11 “pale by comparison,” and the only way to stop those attacks is to renew the PAA with new provisions that will grant telecommunications firms such as BellSouth, Verizon, and AT&T retroactive immunity from prosecution. Those firms are accused of illegally aiding the government in electronically monitoring the telephone and e-mail conversations of US citizens (see February 5, 2006). The PAA expires on February 16, but the government can operate under its provisions for another year. McConnell tells a National Public Radio reporter that the biggest issue surrounding the legislation is liability protection for the telecom firms. “We can’t do this mission without their help,” he says. “Currently there is no retroactive liability protection for them. They’re being sued for billions of dollars.” They did not break the law, McConnell asserts, but the lawsuits are curtailing their willingness to cooperate with the government. “The Senate committee that passed the bill examined the activities of the telecom companies and concluded they were not violating the law,” he says. By not extending retroactive immunity, McConnell says, “we’d lose the capability to protect the country.” [National Public Radio, 2/15/2008] Two days later, McConnell echoes his unusually frank admission. Interviewed on Fox News, he says: “Let me make one other point just—very important. The entire issue here is liability protection for the carriers. And so the old law and extended law are an expired law if we don’t have retroactive liability protection for the carriers. They are less inclined to help us, and so their support.… And therefore, we do not have the agility and the speed that we had before to be able to move and try to capture [terrorists’] communications to thwart their planning.” He also implies that the argument against granting immunity—if the telecoms’ actions were legal in the first place then they wouldn’t need immunity—is valid. Interviewer Chris Wallace says: “Isn’t the central issue here that you’ve lost your power to compel telecommunications companies to cooperate with you and also your ability to offer them legal immunity? Again, the Democrats would say, ‘Look, if the cooperation is legal, they don’t need legal immunity.’” McConnell replies: “Exactly right. The issue now is there’s uncertainty because the law has expired and the law of August, the Protect America Act, allowed us to compel—compel—support from a private carrier. That’s now expired.… [T]he private sector, although willingly helped us [sic] in the past, are now saying, ‘You can’t protect me. Why should I help you?’” Interestingly, after all of the talk of imminent terror attacks, when Wallace asks, “Do you believe al-Qaeda is more of a threat now than any time since 9/11?” McConnell says flatly: “No. Following 9/11, al-Qaeda’s leadership and operatives were degraded probably two-thirds or three-quarters.” House Majority Leader Steny Hoyer (D-MD) responds that the administration’s attempt to tie the renewal of the PAA into the threat of future terrorist attacks is “wrong, divisive and nothing but fear-mongering.” Senator Edward Kennedy (D-MA) adds that McConnell’s “latest comments show yet again the shamelessness of the administration’s tactics.” [Fox News, 2/17/2008]

Entity Tags: Protect America Act, BellSouth, Al-Qaeda, AT&T, Chris Wallace, George W. Bush, Edward M. (“Ted”) Kennedy, Verizon Communications, Steny Hoyer, Mike McConnell

Timeline Tags: Civil Liberties

The Protect America Act (PAA—see August 5, 2007) expires today. Congress has refused to pass a reauthorization of the legislation that contains a provision to grant retroactive immunity to US telecommunications firms to protect them from lawsuits arising from their previous cooperation with government eavesdroppers (see February 5, 2006). President Bush has warned for days that by refusing to reauthorize the bill, Congress is leaving the US “more in danger of attack.” The surveillance elements of the PAA will continue in force for another year after its passage even as the PAA itself expires, so the government’s capability to use electronic surveillance against suspected terrorists and citizens alike continues unabated through August 2008.
Republican Reaction - House Minority Leader John Boehner (R-OH) warns, “This is a grave problem, and the Democrat leaders ought to be held accountable for their inaction.” Senate Minority Leader Mitch McConnell (R-KY) says, “The companies have been waiting for six months for retroactive liability” protection. “They are under pressure from their directors, pressure from their shareholders, and you’re jeopardizing the entire existence of the company by continuing to do this.”
Democratic Reaction - But House Democrats seem to be in no mood to give in to Bush’s rhetoric. Speaker of the House Nancy Pelosi (D-CA) says Bush is “misrepresenting the facts on our nation’s electronic-surveillance capabilities.” “There is no risk the program will go dark,” says Silvestre Reyes (D-TX), chairman of the House Intelligence Committee. Many Democrats accuse the administration of putting the interests of telecom firms over national security—accusations that intensify after Bush’s Director of National Intelligence, Mike McConnell, admitted that the real issue behind the reauthorization is the immunity for telecoms (see February 15-17, 2008). Senator Edward Kennedy (D-MA) says that the entire argument is “nothing more than a scare tactic designed to avoid legal and political accountability and keep Americans in the dark about the administration’s massive lawbreaking.” House member Tim Walz (D-MN) says, “Coming from a military background, I sure don’t downplay that there are threats out there, but the president’s demagoguery on this is the equivalent of the boy crying wolf.” And Rahm Emanuel (D-IL), the head of the House Democratic Caucus, says bluntly: “This is not about protecting Americans. The president just wants to protect American telephone companies.”
Previous Depiction - When the law was signed into effect August 5, 2007, it was portrayed by the White House as “a temporary, narrowly focused statute to deal with the most immediate needs of the intelligence community to protect the country.” Now it is being portrayed by Bush officials as the cornerstone of the nation’s terrorist-surveillance program. The issue is sure to resurface when Congress returns from a week-long break in late February. [Associated Press, 2/14/2008; Washington Post, 2/16/2008]

Entity Tags: Nancy Pelosi, Mike McConnell, John Boehner, George W. Bush, Edward M. (“Ted”) Kennedy, Mitch McConnell, Protect America Act, Rahm Emanuel, Silvestre Reyes, Tim Walz

Timeline Tags: Civil Liberties

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