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AT&T privacy policy overreaches, lawyers say

What's yours is mine

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A recent change to AT&T's privacy policy for broadband and video users is overbroad and likely will leave the courts or Congress to decide whether the company's practices are standard or sinister, legal experts said.

The policy change, which comes as the telecommunications giant is defending itself in court against multiple lawsuit stemming from its alleged cooperation with a surveillance program conducted by the National Security Agency, states that "while your account information may be personal to you, these records constitute business records that are owned by AT&T".

The language, if accepted by consumers and supported by the courts, could redraw the current lines in the battle between privacy advocates and companies that retain significant data on their customers, said Charles Kennedy, an attorney specialising in privacy law and Of Counsel at Morrison & Foerster.

"The playing field has just tilted about 45 degrees with AT&T saying they can do this," Kennedy said. "This means that they could get the whole enchilada if they win. It's a pretty powerful change."

The claim to own, without reservation, its customers private data comes as AT&T and other telecommunications firms have come under fire for turning over customer data to the government outsides of the confines of established legal practices.

While evidence regarding the domestic surveillance activities of the NSA have mounted, the Bush Administration has stepped in and cited "state secret privilege" to quash the increasing number of court actions.

Some legal experts have labeled AT&T's privacy policy change as an attempt to strengthen its legal defense in court, but the company denied the allegations.

"We did this for two reasons," said Walter Sharp, a spokesman for the company. "One is that we merged two companies (SBC and AT&T) and we needed to merge two privacy policies. The second is that we are about to launch a video service, so we needed a policy to cover that."

The changes to the privacy policy, first brought to light by the San Francisco Chronicle, were in the works since before the original New York Times story broke the story of the NSA's activities in December, Sharp maintained.

The revised language, appearing under the heading "Legal Obligations/Fraud" and only accessible to AT&T customers, states:

While your account information may be personal to you, these records constitute business records that are owned by AT&T. As such, AT&T may disclose such records to protect its legitimate business interests, safeguard others, or respond to legal process. Specifically, AT&T provides account information to collection agencies and/or credit bureaus. We may disclose your information in response to subpoenas, court orders, or other legal process, or to establish or exercise our legal rights or defend against legal claims. We may also use your information in order to investigate, prevent, or take action regarding illegal activities, suspected fraud, situations involving potential threats to the physical safety of any person, violations of Service Terms or the Acceptable Use Policy, or as otherwise required or permitted by law.

While the first half of the revised section discusses only "account information" - defined in the privacy policy as contact, billing and equipment information but not usage data - the latter part of the new language uses the more general term, with no hint of irony, of "your information."

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