Original URL: http://www.theregister.co.uk/2006/05/19/telcos_almost_deny_nsa/

Telcos wish to deny mass snooping

'Compassionate totalitarianism' proves tricky for the private sector

By Thomas C Greene

Posted in Media, 19th May 2006 11:21 GMT

BellSouth has demanded that USA Today must retract its story fingering the telco in the Bush Administration's mass domestic dragnet of phone records.

"BellSouth insists that your newspaper retract the false and unsubstantiated statements you have made regarding our company," the company demanded in a letter to USA Today president Craig Moon.

Previously, following last week's USA Today exposé, BellSouth had issued a statement claiming that it does not have a contract to supply the NSA with call records.

"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," the statement said.

Notice that the statement did not say BellSouth had not supplied any call records to the NSA. If it had, perhaps the retraction would already be in print.

But the statement is crafted to be letter-of-the-law accurate, even if there should be an informal agreement rather than a contract, or if something other than "bulk customer calling records" have been handed over, such as "pretty big piles of customer calling records". It could also mean that a BellSouth billing contractor or other partner has supplied the information.

Meanwhile, Verizon has said that it "does not provide any government agency unfettered access to our customer records or provide information to the government under circumstances that would allow a fishing expedition".

Another nice bit of Legalese. This could mean that almost anything is going on. Not providing "unfettered access" might mean that Verizon simply delivers the records to NSA, rather than letting them set up camp on its premises, as AT&T has been accused of doing. Also, as with the BellSouth statement, the wording leaves open the possibility that a contractor is delivering the data.

And as for not allowing a "fishing expedition", one suspects this means absolutely nothing, but the lawyers thought it had a reassuring sound and decided to include it.

Since the NSA is supposedly using only bulk call data indicating patterns - that is, which nameless phone numbers are calling and receiving calls from each other - Verizon could give the agency everything it's seeking, and this would not constitute a "fishing expedition". It would be up to the NSA to plumb other databases to attach names and addresses to the numbers, and then conduct an actual fishing expedition. So don't blame Verizon if that should happen; they've got nothing to do with it.

Furthermore, both companies have said they "cannot confirm or deny" that they've got a relationship with the NSA. Now, trust a journo on this one: in the commercial world, and in the political world, whenever a flack can deny something that might be bad for trade, share values, or winning the election, they always deny it. "I cannot confirm or deny" always means, "I cannot deny". There are no exceptions to this rule outside the realm of legal constraints against commenting in any way (gag orders, etc).

Thus, if BellSouth and Verizon "cannot confirm or deny" NSA snooping in the literal sense of, "we're legally constrained from commenting", then bingo, they've got a relationship with the NSA. If they had no relationship, there would be no constraint, and they would deny the allegations as loudly as possible, as Qwest has done.

When they do that, they'll get their retractions.

Now for a brief word on just how bad this mess actually is. Assuming the NSA program is as advertised, it would not constitute a serious threat to privacy. So long as the agency sticks to its stated goal of analysing call patterns, without identifying data, it's fairly harmless.

That's not to say it's a good thing. Indeed, it might well be illegal. The Bush Administration is betting its authority to analyse domestic phone calls on a presumption of wartime powers, and subsequent certifications by the US Attorney General that the practice is legal under the circumstances. These certifications amount to a get out of jail free card for the telcos, if scant insurance against a PR backlash.

However, if Bush's authoritarian house of cards, built on a very questionable claim of "wartime authority", is to blow away, the shock waves will be severe throughout Washington (and Fort Meade, and Langley). And the telcos could face a PR debacle of Biblical proportions.

Second, the potential for abuse is enormous, when we consider how easy it is to purchase, quite legally, personally-identifying data from sources like ChoicePoint, et al. The NSA has demonstrated, in the (post-Church-Committee) recent past, that it is admirably conscientious about protecting the privacy of US persons insofar as it can. But today it's absurdly easy to get all of the personally-identifying data one could wish for merely by paying a data broker, while the climate of paranoia, endless emergency, and imperious swagger within the Bush Administration is palpable. The outside pressure from the administration, and the internal temptations, to take it to the next level must be tremendous. One has got to figure, if they haven't given in yet, it's only a matter of time.

Still, at least until we learn more, this program appears to be minimally intrusive, if quite foolhardy. The NSA is going to be buried in data, and making useful sense of it is a long shot.

Far more ominous is the admission, by Bush himself, that the NSA has been eavesdropping on the actual content of phone calls and emails between US persons and foreigners, without a FISA warrant. This is a felony. And if the telcos have been cooperating with this outrage - if this is what they cannot confirm or deny - then there is no number of "certifications" from the Attorney General that will keep the gaoler's hand off their collars. ®

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