A recent episode of Real Time With Bill Maher featured a bogus commercial for AT&T. The ad touted the telecom giant's 2005 merger with SBC, and offered more good news for customers: an AT&T-SBC merger with the National Security Agency to create an alphabet-soup corporation called NSAT&TBC. "Making your calls crystal-clear," the commercial boasted. "We have to. We're recording them."
Personal-privacy activists would be laughing, if they didn't find the joke so painfully accurate. In the wake of a December 2005 New York Times piece that revealed that the NSA was monitoring the phone calls of American citizens without obtaining legally mandated court orders, a May 11 USA Today article contended that three of the nation's largest communications companies — AT&T, Verizon and BellSouth — turned over their customer phone records to the federal government. At least one major telecom, Qwest Communications International Inc., disclosed that it refused to turn over requested phone information to the NSA.
The issue of phone logs has been intriguing at least partly because it's shifted the tenor of the national debate about the NSA's efforts to gather domestic information. When the eavesdropping story broke five months ago, it stirred outrage from many legal experts and raised eyebrows on Capitol Hill. But despite questions about why the Bush administration bypassed the Foreign Intelligence Surveillance Act law requiring court orders for domestic wiretapping, the majority of Americans supported the administration on the issue. It was widely seen as a post-Sept. 11 necessity, a Draconian measure that could allow the NSA to keep pace with terrorists living on American soil.
The reaction to government access of customer records has been markedly more negative, with a recent Newsweek poll showing that 53 percent of Americans believe it constitutes an unacceptable invasion of privacy. For many Americans, hounded by computer spyware and perpetually fearful of identity theft, the notion that the government was compiling a record of their phone and Internet activities was disconcerting.
On Jan. 31, the Electronic Frontier Foundation, a San Francisco-based advocacy group devoted to personal privacy in the Internet age, filed a class-action suit against AT&T in a Northern California district court. The suit alleged that the telecom engaged in wiretapping and "data mining" of its own customers. Rebecca Jeschke, media coordinator for EFF, argues that both the NSA's eavesdropping and its obtaining of customer records are indefensible.
"I guess I wouldn't want to rank the relative egregiousness of them," Jeschke says. "They're both illegal and they're both privacy violations. They're illegal under federal law that Congress passed. Congress felt that people's call records were private enough that they specified this kind of information in the Federal Telecommunications Act. I certainly don't want it happening to my information."
In response to consumer anger over the phone-records story, Verizon and BellSouth quickly issued statements denying that they turned over consumer records to the federal government. AT&T, however, has been conspicuously tight-lipped. The Texas-based company — the nation's largest telecommunications provider — denied a request for an interview on the subject, but provided a statement from company spokesman Marc Bien that was notable for what it did not say: It did not contradict any details in the USA Today story or the EFF lawsuit, and it did not deny that it cooperated with the NSA.
"We have an obligation to assist law enforcement and other government agencies responsible for protecting the public welfare, whether it be an individual or the security interests of the entire nation," the AT&T statement read. "It would be as irresponsible for AT&T to refuse to assist in protecting the country when the law allows or requires it as it would be for AT&T to provide such assistance when the law forbids it."
On May 15, the federal government filed a motion to dismiss EFF's lawsuit, asserting the "military and state-secret privilege." It argued that disclosure of information in the suit would cause "grave harm" to national security. While the government's motion was not an admission of collusion between AT&T and the NSA, it raised the inevitable question: Why would the government try to suppress information in a lawsuit directed at AT&T if it had no involvement with AT&T?
In a fittingly secretive twist, the government's motion is classified, so EFF attorneys have only seen a redacted version of it. "We don't even know how many pages it is, and we have to argue against it," Jeschke says. "We just found out it's not even in California, so if the judge wants to see it, they're going to fly him out so he can look at it, and then fly him back. It's a little weird."
EFF's suit may not be the only legal challenge confronted by AT&T. On May 12, a day after the publication of the USA Today article, a federal lawsuit was filed in Manhattan against Verizon on behalf of its subscribers, seeking civil damages. Attorneys who filed the suit are also considering action against AT&T. In addition, Michael Copps, commissioner with the Federal Communications Commission, has called for the agency to investigate the case.
"If you poll the U.S. and everyone says, ‘I want the government behaving this way,' then let's have a law that says the government can behave this way, or repeal the law that says it can't," Jeschke says. "What's really dangerous here is that the government is deciding what laws it's going to obey and not obey, and telling American corporations that they don't have to follow the law.
"AT&T should not have been doing this. AT&T didn't protect its customers. Instead, it followed orders."
A version of this story appeared originally in the San Antonio Current.
AT&T IN COURT
AT&T not only violated the privacy of American citizens by releasing phone records to the National Security Agency, but also put professionals who pledge client confidentiality in a compromising position, charges a lawsuit filed May 18.
Texas attorney R. James George, of George & Brothers LLP, filed the lawsuit against the telecommunications company on behalf of AT&T customers whose records were disclosed to the NSA. According to George, the claim falls not only under federal law, but also a Texas statute that "prohibits and imposes fines for the release of phone records without a court order." The plaintiffs include journalists, reporters, newspaper editors and lawyers, all involved in professions that must guarantee client confidentiality in some situations. The complaint divides the plaintiffs into two groups, "attorney plaintiffs" and "journalist plaintiffs," each representing those in the profession who are subscribers of AT&T, live in the state of Texas and are affected by the AT&T-NSA alliance.
Austin Chronicle editor Louis Black represents "journalist plaintiffs" in the case. According to the suit, journalists and other publications "owe a duty of confidentiality to protect the identity of sources that do not wish to be identified."
Attorneys James C. Harrington and Richard A. Grigg, representing the "attorney plaintiffs" in the case, state that attorneys have "a duty to protect the confidentiality of communications with their clients, potential clients, and counsel."
According to the Dallas Morning News, George offered to hold off on the lawsuit if AT&T assured him the allegations against the company were incorrect. AT&T's attorney would not, according to the article.
AT&T is being charged on five counts in the complaint, including violations of the Stored Communications Act, Communications Act of 1934, invasion of privacy, unauthorized use of pen registers and trap and trace devices, and disgorgement of profits.
George argues that the group of plaintiffs could also include physicians, priests and other professionals who extend confidentiality to their clients.
— Christina Martinez