ZoneFlood

A new Business Week article may help explain how AT&T and BellSouth can say they didn’t help the NSA, despite the spy agency having millions of their records showing the call details of Americans using their networks.

The magazine reveals a hidden corner of the telecommunications world: a small group of companies who specialize in granting the government access to telecommunications records, conversations and real-time data on behalf of the telecom giants.

That’s right: the government now makes so many requests for wiretaps, phone records and call information that an industry has sprung up to handle the load.

[TPMmuckraker | May 19, 2006]

From the AP:

He said the surveillance program used a “probable cause” standard that made it unlikely that information about average Americans would be scrutinized.

But he declined to openly discuss reports that the NSA was engaged in even broader surveillance, including a story in USA Today that the NSA has been secretly collecting phone-call records of tens of millions of U.S. citizens.

Under questioning from Democratic Sen. Carl Levin (news, bio, voting record) of Michigan, Hayden said he would only talk about the part of the program the president had confirmed.

“Is that the whole program?” asked Levin.

“I’m not at liberty to talk about that in open session,” Hayden said. A closed-door session was planned for later in the day.

An AT&T attorney indicated in federal court on Wednesday that the Bush administration provided legal authorization for the telecommunications company to open its network to the National Security Agency.

Federal law may “authorize and in some cases require telecommunications companies to furnish information” to the executive branch, said Bradford Berenson, who was associate White House counsel when President Bush authorized the NSA surveillance program in late 2001 and is now a partner at the Sidley Austin law firm in Washington, D.C.

Far from being complicit in an illegal spying scheme, Berenson said, “AT&T is essentially an innocent bystander.”

AT&T may be referring to an obscure section of federal law, 18 U.S.C. 2511, which permits a telecommunications company to provide “information” and “facilities” to the federal government as long as the attorney general authorizes it. The authorization must come in the form of “certification in writing by…the Attorney General of the United States that no warrant or court order is required by law.”

Information that is not yet public “would be exculpatory and would show AT&T’s conduct in the best possible light,” Berenson said. But he did not acknowledge any details about the company’s alleged participation in the NSA’s surveillance program, which has ignited an ongoing debate on Capitol Hill and led to this class-action lawsuit being filed in January by the Electronic Frontier Foundation.

[CNET News.com | May 17, 2006]

From Tim Grieve at Salon.com:

Cruising through the White House Web site earlier this month, we noticed a rather cryptic Memorandum for the Director National Intelligence. In the memorandum, dated May 5, 2006, and posted a few days later, George W. Bush delegated to John Negroponte “the function of the president under section 13(b)(3)(A) of the Securities Exchange Act of 1934, as amended (15 U.S.C. 78m(b)(3)(A)).”

We didn’t know what it meant, and — the Securities Exchange Act of 1934 not being our first choice for leisure reading — we didn’t take the time to find out. But Think Progress is connecting the dots this morning, and the picture that’s emerging is a pretty interesting one.

The Securities Exchange Act requires companies to “make and keep books, records, and accounts” which “accurately and fairly” reflect their transactions. But the Securities Exchange Act provision Bush cited in his memorandum waives that requirement for transactions involving national security in which a company has cooperated with the federal government after receiving a “directive” from a government official who has been authorized by the president to give one. In issuing his memorandum, Bush gave Negroponte the authority to issue such a directive.

What does that mean? It means that Negroponte now has the authority to free companies that cooperate with him from the obligation to record — and potentially reveal — the activities in which they’re engaged. And what does that mean? Negroponte now apparently has the power to allow the telephone companies that have been turning over telephone records to the NSA to keep their “transactions” — the payments they’re getting from the NSA — off of their books.

Secret documents that allegedly detail the surveillance of AT&T phone lines under the Bush administration’s domestic spying program can be used in a lawsuit against the telephone giant, a federal judge ruled Wednesday, but the records will remain sealed.

U.S. District Judge Vaughn Walker rejected a bid by AT&T Inc. to return the records that were given to the privacy advocate Electronic Frontier Foundation by a former AT&T technician. But Walker said the records would remain under seal until it can be determined whether they reveal trade secrets.

[Associated Press | May 17, 2006]

The Bush administration will brief the full House and Senate Intelligence Committees in Congress on the National Security Agency’s controversial surveillance activities, reversing course after five months.

The sessions scheduled for Wednesday afternoon on Capitol Hill were to be led by the NSA’s director, Lt. Gen. Keith Alexander, and were sure to focus on the ultra-secret agency’s efforts to monitor domestic calls when one party is overseas and suspected of terrorism, as well as the agency’s efforts to collect records on ordinary Americans’ calls.

The briefings were coming less than 24 hours ahead of the opening of confirmation hearings for Gen. Michael Hayden, nominated to head the CIA. He was set to appear Thursday before the Senate Intelligence Committee.

[Associated Press | May 17, 2006]

Verizon Communications Inc. and BellSouth Corp., facing consumer lawsuits seeking massive damages, have issued carefully worded denials of a report that they turned over millions of customers’ calling records to a U.S. spy agency.

USA Today reported last week that the National Security Agency has had access to records of billions of domestic calls and collected tens of millions of telephone records from data provided by BellSouth, Verizon and AT&T Inc..

BellSouth and Verizon denied the part of the USA Today report that said the companies had received a contract from the NSA and that they turned over records. However, Verizon declined to comment on whether it provided access to the NSA.

“One of the most glaring and repeated falsehoods in the media reporting is the assertion that, in the aftermath of the 9/11 attacks, Verizon was approached by NSA and entered into an arrangement to provide the NSA with data from its customers’ domestic calls,” Verizon said in a statement on Tuesday.

However, “Verizon cannot and will not confirm or deny whether it has a relationship to the classified NSA program,” the company said.

BellSouth said on Monday that “based on our review to date, we have confirmed no such contract exists and we have not provided bulk customer calling records to the NSA.” A BellSouth spokesman was not immediately available for further comment.

AT&T has been more circumspect, saying it has an obligation to assist law enforcement and other government agencies but has refused to comment specifically on national security matters.

A company spokesman on Tuesday declined to comment about whether it provided the NSA access.

Electronic Privacy Information Center Executive Director Marc Rotenberg said the statements by government officials and phone carriers were “legal hair splitting.”

“There’s a tremendous amount of parsing going on,” Rotenberg said.

[New York Times | May 16, 2006]

BellSouth Corp. and AT&T Inc. were named in a $200 billion lawsuit on Tuesday alleging that telecommunications companies violated privacy rights by turning over customer phone records for use in a U.S. government call-tracking program to detect terrorist plots.

BellSouth and AT&T were added to the lawsuit seeking class-action status that was initially filed against Verizon Communications Inc. in U.S. District Court in Manhattan on Friday.

[Reuters | May 16, 2006]

Verizon Communications Inc. on Tuesday joined fellow phone company BellSouth Corp. in denying key points of a USA Today story that said the companies had provided records of millions of phone calls to the government.

Verizon has not provided customer call data to the National Security Agency, nor had it been asked to do so, the company said in an e-mailed statement. The statement came a day after BellSouth Corp. made a similar denial….

Tuesday’s denial did not apply to MCI, the long-distance carrier Verizon acquired in January. In an earlier statement, Verizon said it is in the process of ensuring that its policies are put in place in the former MCI business.

[Associated Press | May 16, 2006]

President Bush insisted Tuesday that the United States does not listen in on domestic telephone conversations among ordinary Americans. But he declined to specifically discuss the government’s alleged compiling of phone records, or whether it would amount to an invasion of privacy.

“We do not listen to domestic phone calls without court approval,” Bush said in an East Room news conference with Australian Prime Minister John Howard.

[Associated Press | May 16, 2006]