http://www.azcentral.com/news/articles/0510phonerecords-ON.html
The National Security Agency has been secretly collecting the phone call
records of tens of millions of Americans, using data provided by AT&T,
Verizon and BellSouth, people with direct knowledge of the arrangement
told USA TODAY.
The NSA program reaches into homes and businesses across the nation by
amassing information about the calls of ordinary Americans - most of whom
aren't suspected of any crime. This program does not involve the NSA
listening to or recording conversations. But the spy agency is using the
data to analyze calling patterns in an effort to detect terrorist
activity, sources said in separate interviews.
"It's the largest database ever assembled in the world," said one person,
who, like the others who agreed to talk about the NSA's activities,
declined to be identified by name or affiliation. The agency's goal is
"to create a database of every call ever made" within the nation's
borders, this person added.
For the customers of these companies, it means that the government has
detailed records of calls they made - across town or across the country -
to family members, co-workers, business contacts and others.
The three telecommunications companies are working under contract with
the NSA, which launched the program in 2001 shortly after the Sept. 11
terrorist attacks, the sources said. The program is aimed at identifying
and tracking suspected terrorists, they said.
The sources would talk only under a guarantee of anonymity because the
NSA program is secret.
Air Force Gen. Michael Hayden, nominated Monday by President Bush to
become the director of the CIA, headed the NSA from March 1999 to April
2005. In that post, Hayden would have overseen the agency's domestic call-
tracking program. Hayden declined to comment about the program.
The NSA's domestic program, as described by sources, is far more
expansive than what the White House has acknowledged. Last year, Bush
said he had authorized the NSA to eavesdrop - without warrants - on
international calls and international e-mails of people suspected of
having links to terrorists when one party to the communication is in the
United States. Warrants have also not been used in the NSA's efforts to
create a national call database.
In defending the previously disclosed program, Bush insisted that the NSA
was focused exclusively on international calls. "In other words," Bush
explained, "one end of the communication must be outside the United
States."
As a result, domestic call records - those of calls that originate and
terminate within U.S. borders - were believed to be private.
Sources, however, say that is not the case. With access to records of
billions of domestic calls, the NSA has gained a secret window into the
communications habits of millions of Americans. Customers' names, street
addresses and other personal information are not being handed over as
part of NSA's domestic program, the sources said. But the phone numbers
the NSA collects can easily be cross-checked with other databases to
obtain that information.
Don Weber, a senior spokesman for the NSA, declined to discuss the
agency's operations. "Given the nature of the work we do, it would be
irresponsible to comment on actual or alleged operational issues;
therefore, we have no information to provide," he said. "However, it is
important to note that NSA takes its legal responsibilities seriously and
operates within the law."
The White House would not discuss the domestic call-tracking program.
"There is no domestic surveillance without court approval," said Dana
Perino, deputy press secretary, referring to actual eavesdropping.
She added that all national intelligence activities undertaken by the
federal government "are lawful, necessary and required for the pursuit of
al-Qaeda and affiliated terrorists." All government-sponsored
intelligence activities "are carefully reviewed and monitored," Perino
said. She also noted that "all appropriate members of Congress have been
briefed on the intelligence efforts of the United States."
AT&T recently merged with SBC and kept the AT&T name. Verizon, BellSouth
and AT&T are the nation's three biggest telecommunications companies;
they provide local and wireless phone service to more than 200 million
customers in all 50 states.
The three carriers control vast networks with the latest communications
technologies. They provide an array of services: local and long-distance
calling, wireless and high-speed broadband, including video. Their direct
access to millions of homes and businesses has them uniquely positioned
to help the government keep tabs on the calling habits of Americans.
Among the big telecommunications companies, only Qwest has refused to
help the NSA, the sources said. According to multiple sources, Qwest
declined to participate because it was uneasy about the legal
implications of handing over proprietary customer information to the
government without warrants.
Qwest's refusal to participate has left the NSA with a hole in its
database. Based in Denver, Qwest provides local phone service to 14
million customers in 14 states in the West and Northwest. But AT&T and
Verizon also provide some services - primarily long-distance and wireless
- to people who live in Qwest's region. Therefore, they can provide the
NSA with at least some access in that area.
NSA's mission
Created by President Truman in 1952, during the Korean War, the NSA is
charged with protecting the United States from foreign security threats.
The agency was considered so secret that for years the government refused
to even confirm its existence. Government insiders used to joke that NSA
stood for "No Such Agency."
In 1975, a congressional investigation revealed that the NSA had been
intercepting, without warrants, international communications for more
than 20 years at the behest of the CIA and other agencies. The spy
campaign, code-named "Shamrock," led to the Foreign Intelligence
Surveillance Act (FISA), which was designed to protect Americans from
illegal eavesdropping.
Enacted in 1978, FISA lays out procedures that the U.S. government must
follow to conduct electronic surveillance and physical searches of people
believed to be engaged in espionage or international terrorism against
the United States. A special court, which has 11 members, is responsible
for adjudicating requests under FISA.
Over the years, NSA code-cracking techniques have continued to improve
along with technology. The agency today is considered expert in the
practice of "data mining" - sifting through reams of information in
search of patterns. Data mining is just one of many tools NSA analysts
and mathematicians use to crack codes and track international
communications.
Paul Butler, a former U.S. prosecutor who specialized in terrorism
crimes, said FISA approval generally isn't necessary for government data-
mining operations. "FISA does not prohibit the government from doing data
mining," said Butler, now a partner with the law firm Akin Gump Strauss
Hauer & Feld in Washington, D.C.
The caveat, he said, is that "personal identifiers" - such as names,
Social Security numbers and street addresses - can't be included as part
of the search. "That requires an additional level of probable cause," he
said.
The usefulness of the NSA's domestic phone-call database as a
counterterrorism tool is unclear. Also unclear is whether the database
has been used for other purposes.
The NSA's domestic program raises legal questions. Historically, AT&T and
the regional phone companies have required law enforcement agencies to
present a court order before they would even consider turning over a
customer's calling data. Part of that owed to the personality of the old
Bell Telephone System, out of which those companies grew.
Ma Bell's bedrock principle - protection of the customer - guided the
company for decades, said Gene Kimmelman, senior public policy director
of Consumers Union. "No court order, no customer information - period.
That's how it was for decades," he said.
The concern for the customer was also based on law: Under Section 222 of
the Communications Act, first passed in 1934, telephone companies are
prohibited from giving out information regarding their customers' calling
habits: whom a person calls, how often and what routes those calls take
to reach their final destination. Inbound calls, as well as wireless
calls, also are covered.
The financial penalties for violating Section 222, one of many privacy
reinforcements that have been added to the law over the years, can be
stiff. The Federal Communications Commission, the nation's top
telecommunications regulatory agency, can levy fines of up to $130,000
per day per violation, with a cap of $1.325 million per violation. The
FCC has no hard definition of "violation." In practice, that means a
single "violation" could cover one customer or 1 million.
In the case of the NSA's international call-tracking program, Bush signed
an executive order allowing the NSA to engage in eavesdropping without a
warrant. The president and his representatives have since argued that an
executive order was sufficient for the agency to proceed. Some civil
liberties groups, including the American Civil Liberties Union, disagree.
Companies approached
The NSA's domestic program began soon after the Sept. 11 attacks,
according to the sources. Right around that time, they said, NSA
representatives approached the nation's biggest telecommunications
companies. The agency made an urgent pitch: National security is at risk,
and we need your help to protect the country from attacks.
The agency told the companies that it wanted them to turn over their
"call-detail records," a complete listing of the calling histories of
their millions of customers. In addition, the NSA wanted the carriers to
provide updates, which would enable the agency to keep tabs on the
nation's calling habits.
The sources said the NSA made clear that it was willing to pay for the
cooperation. AT&T, which at the time was headed by C. Michael Armstrong,
agreed to help the NSA. So did BellSouth, headed by F. Duane Ackerman;
SBC, headed by Ed Whitacre; and Verizon, headed by Ivan Seidenberg.
With that, the NSA's domestic program began in earnest.
AT&T, when asked about the program, replied with a comment prepared for
USA TODAY: "We do not comment on matters of national security, except to
say that we only assist law enforcement and government agencies charged
with protecting national security in strict accordance with the law."
In another prepared comment, BellSouth said: "BellSouth does not provide
any confidential customer information to the NSA or any governmental
agency without proper legal authority."
Verizon, the USA's No. 2 telecommunications company behind AT&T, gave
this statement: "We do not comment on national security matters, we act
in full compliance with the law and we are committed to safeguarding our
customers' privacy."
Qwest spokesman Robert Charlton said: "We can't talk about this. It's a
classified situation."
In December, The New York Times revealed that Bush had authorized the NSA
to wiretap, without warrants, international phone calls and e-mails that
travel to or from the United States. The following month, the Electronic
Frontier Foundation, a civil liberties group, filed a class-action
lawsuit against AT&T. The lawsuit accuses the company of helping the NSA
spy on U.S. phone customers.
Last month, U.S. Attorney General Alberto Gonzales alluded to that
possibility. Appearing at a House Judiciary Committee hearing, Gonzales
was asked whether he thought the White House has the legal authority to
monitor domestic traffic without a warrant. Gonzales' reply: "I wouldn't
rule it out." His comment marked the first time a Bush appointee publicly
asserted that the White House might have that authority.
Similarities in programs
The domestic and international call-tracking programs have things in
common, according to the sources. Both are being conducted without
warrants and without the approval of the FISA court. The Bush
administration has argued that FISA's procedures are too slow in some
cases. Officials, including Gonzales, also make the case that the USA
Patriot Act gives them broad authority to protect the safety of the
nation's citizens.
The chairman of the Senate Intelligence Committee, Sen. Pat Roberts, R-
Kan., would not confirm the existence of the program. In a statement to
USA TODAY, he said, "I can say generally, however, that our subcommittee
has been fully briefed on all aspects of the Terrorist Surveillance
Program. ... I remain convinced that the program authorized by the
president is lawful and absolutely necessary to protect this nation from
future attacks."
The chairman of the House Intelligence Committee, Rep. Pete Hoekstra, R-
Mich., declined to comment.
One company differs
One major telecommunications company declined to participate in the
program: Qwest.
According to sources familiar with the events, Qwest's CEO at the time,
Joe Nacchio, was deeply troubled by the NSA's assertion that Qwest didn't
need a court order - or approval under FISA - to proceed. Adding to the
tension, Qwest was unclear about who, exactly, would have access to its
customers' information, and how that information might be used.
Financial implications were also a concern, the sources said. Carriers
that illegally divulge calling information can be subjected to heavy
fines. The NSA was asking Qwest to turn over millions of records. The
fines, in the aggregate, could have been substantial.
The NSA told Qwest that other government agencies, including the FBI, CIA
and DEA, also might have access to the database, the sources said. As a
matter of practice, the NSA regularly shares its information - known as
"product" in intelligence circles - with other intelligence groups. Even
so, Qwest's lawyers were troubled by the expansiveness of the NSA
request, the sources said.
The NSA, which needed Qwest's participation to completely cover the
country, pushed back hard.
Trying to put pressure on Qwest, NSA representatives pointedly told Qwest
that it was the lone holdout among the big telecommunications companies.
It also tried appealing to Qwest's patriotic side: In one meeting, an NSA
representative suggested that Qwest's refusal to contribute to the
database could compromise national security, one person recalled.
In addition, the agency suggested that Qwest's foot-dragging might affect
its ability to get future classified work with the government. Like other
big telecommunications companies, Qwest already had classified contracts
and hoped to get more.
Unable to get comfortable with what NSA was proposing, Qwest's lawyers
asked NSA to take its proposal directly to the FISA court. According to
the sources, the agency refused.
The NSA's explanation did little to satisfy Qwest's lawyers.
"They told (Qwest) they didn't want to do that because FISA might not
agree with them," one person recalled. For similar reasons, this person
said, NSA also rejected Qwest's suggestion of getting a letter of
authorization from the U.S. attorney general's office. A second person
confirmed this version of events.
In June 2002, Nacchio resigned amid allegations that he had misled
investors about Qwest's financial health. But Qwest's legal questions
about the NSA request remained.
Unable to reach agreement, Nacchio's successor, Richard Notebaert,
finally pulled the plug on the NSA talks in late 2004, the sources said.
No comments:
Post a Comment