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FAQ: Telecom carrier immunity

Explaining the push for telecom immunity

By Brad Reed, Network World
October 17, 2007 11:38 AM ET

Network World - Last week, President Bush urged Congress to grant major telecom companies legal immunity for any assistance they gave to the National Security Agency’s warrantless surveillance program. In this FAQ, we examine the issues behind telecom immunity, as well as the ramifications it could have for future government-telco cooperation.

What do telcos need immunity from?

Lawsuits — in 2005, the New York Times reported that the Bush administration had authorized the National Security Agency (NSA) to eavesdrop on the conversations of people residing in the United States, including American citizens who contacted suspected terrorists internationally through phone or e-mail. In the wake of these revelations, the Electronic Frontier Foundation sued AT&T for participating in the NSA’s warrantless spying program.

What does EFF’s lawsuit allege?

The main claim is that AT&T violated the Foreign Intelligence Surveillance Act (FISA) by allowing the NSA to eavesdrop on calls made from within the United States to foreign terrorist suspects. FISA states that the government may only employ warrantless wiretapping if it is directed at “communications transmitted by means of communications used exclusively between or among foreign powers” or at the “acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power.”

In other words, the government can only use warrantless wiretapping against foreign targets communicating through foreign networks. Any wiretaps of communications involving U.S. citizens, legal residents or corporations require that the government get a warrant, as FISA states that warrantless wiretaps can only be used if “there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.”

More broadly, the suit also alleges that AT&T violated its customers’ First Amendment rights to free speech and free association and their Fourth Amendment rights to be free from warrantless unreasonable searches.

Are there any other suits pending?

According to a report in USA Today, Verizon, AT&T and BellSouth all agreed to turn over the call records of tens of millions of customers to the NSA without a court warrant. Two attorneys in New Jersey sued the three companies for allegedly violating privacy rights contained within the Communications Act of 1934, the Electronic Communications and Privacy Act and the 1986 Stored Communications Act. There are other suits that have been filed against these companies that allege similar infractions.

Did all the major telcos comply with the NSA’s requests to hand over customer phone records?

Qwest refused to comply with NSA requests for this program out of concern that doing so might violate federal privacy laws and thus open the company up to the same suits now facing Verizon and AT&T.

What will the suits’ impact have for enterprise users?

It’s unlikely that the suits will directly impact enterprise services, but their financial impact on the telcos could be steep. The Afran-Mayer suit, for instance, is asking AT&T, Verizon and BellSouth to pay $200 billion to their 200 million subscribers.

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