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FCC to El Reg: Telstra's 'secret FBI snoop' doc public since 2001

Move along, no new post-Snowden spookery to see here

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When a “secret contract” between Telstra and the US government emerged last week, it was too juicy to miss.

Fairfax lapped it up, as did Crikey (which later amended the story). ZDNet called it a “leaked document”, and Senator Scott Ludlam got in on the act, demanding that Telstra “come clean”.

The problem is, the document wasn't “secret”, “previously secret”, or even “ever a secret”, and it wasn't leaked – because it's been a public document since 2001.

Vulture South has been advised that the contract between Telstra vassal Reach and the FBI was never a secret document, from no less an authority than the USA's Federal Communications Commission (FCC), which stated in an e-mail that it “can confirm that the document is a public FCC document. It was available in hard copy from the Commission in 2001, and electronically since at least January, 2007.”

One reason it was easy to believe the document was a "leak" is that the version that's posted at Public Intelligence lacks seven pages at the beginning which provide context. If you view the entire document – here for convenience, since the FCC is difficult to navigate – it's clear that the contract is an attachment to a proceeding that is common to all foreign carriers landing on US soil.

Alert readers will note that the front page makes no mention of any kind of confidentiality.

Here is a similar document covering another carrier, TerreStar – again, a public document, part of this list. As readers will quickly see, the form of words is almost identical.

That's because the National Security Agreement (under more than one form of words over the years, and involving different agencies depending on when the international carrier receives its US license) is a boilerplate to which every carrier hoping to land traffic in the USA must agree.

It's pretty much the final step in the process of licensing. Once every other condition of gaining a license to land a cable in America is fulfilled, American national security agencies get the carrier to sign the form, and file submissions to the FCC agreeing to the license.

The preamble document provides this context to the agreement, also valuable. The purpose of the agreement is:

  • "(1) carry out lawfully authorized electronic surveillance of domestic US calls or calls that originate or terminate in the United states;
  • "(2) prevent and detect foregin-based espionage and electronic surveillance of US communications, which would jeopardize the security and privacy of such communications and could foreclose prosecution of individuals involved in such activities; and
  • "(3) satisfy the National Emergency Preparedness Act and US infrastructure protection requirements."

The National Security Agreement does not require interception of “all communications” or “all communications metadata” – only that covered by America's (admittedly intrusive) legal processes.

So what happened? In the opinion of The Register: in the “Snowden frenzy”, a document becomes a “leaked secret” merely because someone says it is a leak of a secret.

Why didn't Telstra say so? Vulture South suggests the most obvious reason: it's so long ago that nobody remembered the details.

Of course, there are legitimate questions to be asked – most particularly relating to the impact that America's flawed processes expose other countries to surveillance; and America's willingness to spy on its allies. But inventing some kind of corporate-government conspiracy merely to fit a document to a narrative doesn't help the debate. ®

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