Telecoms Pressed on Surveillance

By Ellen Nakashima
Washington Post Staff Writer
Wednesday, October 3, 2007

Key Democratic lawmakers are pressing telephone companies to disclose how they shared Americans' calling and Internet data with the government, part of an inquiry into domestic surveillance efforts such as the National Security Agency's warrantless wiretapping program.

The House Energy and Commerce Committee, which has jurisdiction over the telecom industry, yesterday sent letters to three major carriers, AT&T, Qwest and Verizon, posing questions aimed at understanding what consumer information is being shared with the government.

"Congress has a duty to inquire about whether [the government surveillance program] violates the Constitution, as well as consumer protection and privacy laws," said Chairman John D. Dingell (D-Mich.).

Last month, committee member Edward J. Markey (D-Mass.), who has pressed the Federal Communications Commission on the matter for more than a year, urged FCC Chairman Kevin J. Martin to open an inquiry into allegations that the telecoms illegally disclosed customer records by cooperating with intelligence agency requests for data.

"As reports about government intelligence agencies running roughshod over telecommunications privacy laws continue to surface," Markey said, "I have grown more and more concerned that the rights of consumers are being lost in the shuffle."

The moves come as the Bush administration is pushing Congress to grant telecoms immunity in lawsuits charging them with invading Americans' privacy by aiding the government's post-Sept. 11 counterterrorism program.

Although Democrats on the Senate Intelligence Committee have said there is consensus that the companies should have some form of relief, House Democrats have voiced a reluctance even to consider retroactive immunity at least until they have an understanding of the program that the telecoms are charged with aiding. The administration has resisted subpoenas for such information.

Qwest declined to comment on the letter or the immunity legislation. Verizon spokesman Peter Thonis said "We'll be responding as best we can to the letter." Claudia Jones of AT&T said the company is committed to protecting customers' privacy.

The letters sent by Dingell, Markey and Rep. Bart Stupak (D-Mich.) are based on revelations over the past year or so about the government's collection of customer data in apparent violation of privacy and other laws. In May 2006, USA Today and other media reported that ATT, BellSouth (now part of ATT) and Verizon provided the NSA with access to customer phone records without the customers' knowledge or consent. Qwest declined to participate, the letter noted.

In March, the Justice Department inspector general reported that the FBI improperly obtained Americans' telephone and other records from telecom carriers by abusing its authority to request information using a form of administrative subpoena called a national security letter, or NSL.

In July, Director of National Intelligence Mike McConnell confirmed that the NSA had been engaging in other surveillance programs in addition to the admitted NSA wiretapping program, and in August he acknowledged that carriers aided the NSA's warrantless wiretapping program and were sued.

Section 222 of the Communications Act prohibits telecom carriers from disclosing proprietary customer information without customer approval absent a court order or other administrative order.

The lawmakers asked the carriers, among other things, whether the telecoms have been asked to provide customer information without an NSL or approval from a special court under the Foreign Intelligence Surveillance Act (FISA). If so, who asked them for the data? Did the firms object? Are they currently providing any information to the government without a FISA order? Have they ever been asked to install equipment on their network to intercept Internet traffic or to send such information to third parties?

The committee also wants to know whether telecoms gave details on customers' "communities of interest," or networks of people with whom the customers were in contact. According to documents released last month by the Electronic Frontier Foundation, the FBI used "exigent letters" -- emergency letters outside the NSL process -- to obtain such data.

Foundation legal director Cindy A. Cohn said the questions are a welcome display of oversight by lawmakers. "This is about millions of ordinary Americans and their right to privacy."

Center for Democracy & Technology Senior Counsel Greg Nojeim said the inquiry opens a "new front in the effort to pry loose information about the warrantless surveillance program."

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