A CEO who resisted NSA spying is out of prison. And he feels ‘vindicated’ by Snowden leaks.

September 30, 2013

Both Edward Snowden and Joseph Nacchio revealed details about some of the things that go on at NSA headquarters in Fort Meade. (NSA/Reuters)

Just one major telecommunications company refused to participate in a legally dubious NSA surveillance program in 2001. A few years later, its CEO was indicted by federal prosecutors. He was convicted, served four and a half years of his sentence and was released this month.

Prosecutors claim Qwest CEO Joseph Nacchio was guilty of insider trading, and that his prosecution had nothing to do with his refusal to allow spying on his customers without the permission of the Foreign Intelligence Surveillance Court. But to this day, Nacchio insists that his prosecution was retaliation for refusing to break the law on the NSA's behalf.

After his release from custody Sept. 20, Nacchio told the Wall Street Journal that he feels "vindicated" by the content of the leaks that show that the agency was collecting American's phone records.

Nacchio was convicted of selling of Qwest stock in early 2001, not long before the company hit financial troubles. However, he claimed in court documents that he was optimistic about the firm's ability to win classified government contracts — something they'd succeeded at in the past. And according to his timeline, in February 2001 — some six months before the Sept. 11 terrorist attacks — he was approached by the NSA and asked to spy on customers during a meeting he thought was about a different contract. He reportedly refused because his lawyers believed such an action would be illegal and the NSA wouldn't go through the FISA Court. And then, he says, unrelated government contracts started to disappear.

His narrative matches with the warrantless surveillance program reported by USA Today in 2006 which noted Qwest as the lone holdout from the program, hounded by the agency with hints that their refusal "might affect its ability to get future classified work with the government." But Nacchio was prevented from bringing up any of this defense during his jury trial — the evidence needed to support it was deemed classified and the judge in his case refused his requests to use it. And he still believes his prosecution was retaliatory for refusing the NSA requests for bulk access to customers' phone records. Some other observers share that opinion, and it seems consistent with evidence that has been made public, including some of the redacted court filings unsealed after his conviction.

The NSA declined to comment on Nacchio, referring inquiries to the Department of Justice. The Department of Justice did not respond to The Post's request for comment.

Snowden leaked documents about NSA spying programs to the public and arguably broke the law in doing so. In contrast, Nacchio seems to have done what was in his power to limit an illegal government data collection program. Even during his own defense, he went through the legal channels he could to make relevant information available for his defense — albeit unsuccessfully.

The programs that were revealed are also substantially different in nature, if not in content. The Bush-era warrantless surveillance programs and data collection  programs were on shaky legal ground, based on little more than the president's say-so. That's why telecom companies sought and received legal immunity from Congress for their participation in 2008. But that same update also expanded government surveillance powers. Some observers argue that some of the NSA's spying programs are still unconstitutional. But at a minimum, these programs were authorized by the FISC and disclosed to congressional intelligence committees.

Nacchio told the Wall Street Journal, "I never broke the law, and I never will." But he never got a chance to present to the jury his theory that his prosecution was politically motivated.

Correction: An earlier version of this post reported the the length of time between Nacchio's meetings with the NSA and his indictment was a few months rather than a few years. We regret the error. 

Andrea Peterson covers technology policy for The Washington Post, with an emphasis on cybersecurity, consumer privacy, transparency, surveillance and open government.
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Andrea Peterson | September 30, 2013