& cplSiteName &

Were Telcos Justified in Warrantless Wiretaps?

Raymond McConville
CTIA News Analysis
Raymond McConville
3/14/2008
50%
50%

Democrats and Republicans in Congress are divided over a critical telecom issue: wiretapping. Are the U.S.'s largest phone companies liable for assisting the federal government in carrying out warrantless wiretaps?

The answer may not be one that privacy advocates want to hear. Even if the Bush Administration acted outside the authority of the Constitution in authorizing wiretaps since September 11, 2001, our sources say the phone companies can defend their actions.

"I'm quite confident based on what I've read that both these companies had an opinion from the Attorney General that the authority was lawful," says one lawyer with knowledge of the situation (and no telecom clients). "By statute, they have the right to rely on a written certification. What I'm confused about is why the trial courts haven't given them the immunity that they're entitled to under the statute."

The point: Telcos don't make a morality call when it comes to wiretap requests. If the Executive Branch gives a written order to assist with a wiretap, the only question the telco asks is if the document is valid.

The nation's phone companies have been hit with over 40 different lawsuits over their role facilitating warrantless wiretaps. Republicans want these lawsuits thrown out with the telcos given retroactive immunity, but the legislation proposed by House Democrats this week suggests that the suits should be allowed to move forward in the courts.

The issue at hand is the recently expired Protect America Act passed in 2007. The law expanded the powers granted in the 1978 Foreign Intelligence Surveillance Act (FISA) that regulates wiretaps. That 1978 law contains a provision that allows the Executive Branch to order a wiretap without a warrant as long as it is reasonably believed to not involve U.S. citizens. In other words it could be for the collection of foreign surveillance information only. [Ed. note: Exciting stuff, eh?]

In 2005, The New York Times revealed that since the September 11, 2001, terrorist attacks, President George W. Bush had authorized the wiretapping of U.S. citizens without a court order or warrant. He did this with the full cooperation of U.S. phone companies including AT&T Inc. (NYSE: T) and Verizon Communications Inc. (NYSE: VZ).

Telcos are reportedly getting nervous and more and more reluctant to cooperate with wiretaps out of fear of getting in more legal trouble. But if the law protects them from liability, why are they getting sued?

Experts we spoke to, including a lawyer and a former FBI official, say this is more of a political issue than a legal issue and that the privacy groups taking the telcos to court are merely using them as a way to swipe at the Attorney General and the President. "The real issue is that the privacy groups can't get to the Attorney General or President," says our legal expert. "They've made it clear they're trying to get through the telcos to find out what the federal government is doing with the information."

If the telcos are immune from prosecution under the original wiretapping laws, then why are Republicans and Democrats fighting over new legislation to protect them if they are in fact already protected?

"The Protect America Act was put into statute to endorse some of the procedures that the President was already doing. It's the theory that it's more powerful when two branches are acting together," says our former FBI official source.

The government is also fearing that if the courts put enough pressure on the telcos, then they won't cooperate with them in future wiretapping. "The Executive Branch is trying to assure them that they'll stand behind them in the future," our ex-FBI man says. "Frankly, if you don’t get the telephone companies' cooperation, then you don't engage in wiretapping."

— Raymond McConville, Reporter, Light Reading


Interested in learning more on this topic? Then come to the Tower Technology Summit, a conference focused on the infrastructure that drives technical innovation in the wireless industry. Collocated with the industry's largest wireless event, CTIA, in Las Vegas, April 1-2, admission is free for attendees meeting our prequalification criteria. For more information, or to register, click here.


(29)  | 
Comment  | 
Print  | 
Newest First  |  Oldest First  |  Threaded View        ADD A COMMENT
Page 1 / 3   >   >>
litereading
50%
50%
litereading,
User Rank: Light Beer
12/5/2012 | 3:45:39 PM
re: Were Telcos Justified in Warrantless Wiretaps?
In the United States no one should be above the Constitution - neither Fortune 500 companies nor the President and Vice President.
majid
50%
50%
majid,
User Rank: Light Beer
12/5/2012 | 3:45:39 PM
re: Were Telcos Justified in Warrantless Wiretaps?
Convicted felon Joe Nacchio somehow mustered the integrity to say no. I'm sorry, but the argument the telcos were just following orders does not pass muster.

One aspect that is seldom mentioned - AT&T and Verizon charged a pretty penny for selling out our privacy to illegal wiretapping. Qwest was punished by being locked out of certain government contracts.
jepovic
50%
50%
jepovic,
User Rank: Light Beer
12/5/2012 | 3:45:38 PM
re: Were Telcos Justified in Warrantless Wiretaps?
The whole legal situation seems absurd to me.

Either wiretapping is legal, and then the telcos must comply in all cases with a proper decision made. Or it is not legal, and then the telcos must not comply. This article suggests that telcos somehow make their own judgement case by case, which is pretty bizarre. Surely they do not get the background info?
TomS6
50%
50%
TomS6,
User Rank: Light Beer
12/5/2012 | 3:45:38 PM
re: Were Telcos Justified in Warrantless Wiretaps?
"If the Executive Branch gives a written order to assist with a wiretap, the only question the telco asks is if the document is valid."

That's exactly the issue. The requests weren't valid, which is why Qwest didn't comply with the requests. One of the principles of our government is that of checks and balances, which is why judicial review is required for wiretap orders. If the AG approves wiretap orders from an intelligence agency that's the same as the Executive Branch saying that the Executive Branch's request is valid.

The Founding Fathers had a word for this kind of reasoning and justification - tyranny.
DarkWriting
50%
50%
DarkWriting,
User Rank: Light Beer
12/5/2012 | 3:45:38 PM
re: Were Telcos Justified in Warrantless Wiretaps?
Something tells me there is a lot more going on here than meets the eye. When the Senate Democrats roll over like a month-old puppy, something doesn't pass the smell test. It's not all about the money to be spent on trials and it's not about legal precedent.

I think the Vice President should be in jail (Dubya is irrelevant) but I have to wonder why Senator Rockefeller should give anyone a free pass so easily. Perhaps he is being given another snow job about national security?

I keep hearing about how these wire taps were critical to keeping other attacks from happening. With Tricky Dick running the show, I will need some solid proof before I believe anything this bunch has to say.

DW

PS. Guess I have to hope LR will not roll over and hand my identity to the Justice department.
Raymond McConville
50%
50%
Raymond McConville,
User Rank: Light Beer
12/5/2012 | 3:45:37 PM
re: Were Telcos Justified in Warrantless Wiretaps?
This isn't an issue of whether the premise behind the wiretap was valid or not, it's whether the official written request was a valid document. Bush and the AG could very well have been behaving outside their authority with some of the wiretaps, but if the law says the phone company can't deny their request, what are they supposed to do?
fgoldstein
50%
50%
fgoldstein,
User Rank: Light Sabre
12/5/2012 | 3:45:37 PM
re: Were Telcos Justified in Warrantless Wiretaps?
> Convicted felon Joe Nacchio somehow mustered the integrity to say no.

Bear in mind that his conviction may well stem directly from his saying no!

At the time of the illegal, warrantless request, Qwest was a leading contender for a big government contract. So they included it in their anticipated revenues. Because Nacchio did the right thing and turned down the request, the Cheney-Rove regime didn't award them the contract. And the prosecutors were let loose on them.

Nacchio's books were probably far less than squeaky clean, but there's probably a real connection between the events.
DCITDave
50%
50%
DCITDave,
User Rank: Light Beer
12/5/2012 | 3:45:36 PM
re: Were Telcos Justified in Warrantless Wiretaps?
re: "but if the law says the phone company can't deny their request, what are they supposed to do?"

Have some backbone? Some integrity? Some sense of right and wrong that goes beyond the rule of law?

But, then, we are talking about telcos here.
materialgirl
50%
50%
materialgirl,
User Rank: Light Beer
12/5/2012 | 3:45:36 PM
re: Were Telcos Justified in Warrantless Wiretaps?
If the telcos see a conflict, they should appeal, or request a second opinion from someone who can justify the behavior as constitutional. That is why we have 3 branches of government.
DCITDave
50%
50%
DCITDave,
User Rank: Light Beer
12/5/2012 | 3:45:35 PM
re: Were Telcos Justified in Warrantless Wiretaps?
doofus,

I'm not "flippantly suggesting that breaking the law is OK as long as you genuinely disagree with it".

I am suggesting that perhaps the telcos have the means and power to explore whether what they're asked to do is on the level.

Put another way, how much time, money, and effort do the telcos spend fighting regulation of what are, in many cases, de facto geographic monopolies? Millions of bucks and hundreds of hours.

Could any of that time, money, and effort be used to see if spying on citizens was an appropriate request, even while honoring the letter of the law?

And IF they find out the request was out of bounds, are they not in a position to apply political pressure -- to lobby -- for the requests to stop?

I'm not suggesting that the telcos break the law.
My position, you'll recall, is that I don't care if they pay a dime for their "crimes", so long as they tell us exactly what they did. (http://www.lightreading.com/bl...

ph
Page 1 / 3   >   >>
Featured Video
From The Founder
Light Reading founder Steve Saunders grills Cisco's Roland Acra on how he's bringing automation to life inside the data center.
Flash Poll
Upcoming Live Events
March 20-22, 2018, Denver Marriott Tech Center
March 22, 2018, Denver, Colorado | Denver Marriott Tech Center
March 28, 2018, Kansas City Convention Center
April 4, 2018, The Westin Dallas Downtown, Dallas
April 9, 2018, Las Vegas Convention Center
May 14-16, 2018, Austin Convention Center
May 14, 2018, Brazos Hall, Austin, Texas
September 24-26, 2018, Westin Westminster, Denver
October 9, 2018, The Westin Times Square, New York
October 23, 2018, Georgia World Congress Centre, Atlanta, GA
November 8, 2018, The Montcalm by Marble Arch, London
November 15, 2018, The Westin Times Square, New York
December 4-6, 2018, Lisbon, Portugal
All Upcoming Live Events
Hot Topics
Has Europe Switched to a Fiber Diet? Not Yet...
Ray Le Maistre, Editor-in-Chief, 2/15/2018
Net Neutrality: States' Rights vs. the FCC
Mari Silbey, Senior Editor, Cable/Video, 2/13/2018
IBM, Microsoft Duke It Out Over Chief Diversity Hire
Sarah Thomas, Director, Women in Comms, 2/15/2018
Will China React to Latest US Huawei, ZTE Slapdown?
Ray Le Maistre, Editor-in-Chief, 2/16/2018
5G: The Density Question
Dan Jones, Mobile Editor, 2/15/2018
Animals with Phones
Live Digital Audio

A CSP's digital transformation involves so much more than technology. Crucial – and often most challenging – is the cultural transformation that goes along with it. As Sigma's Chief Technology Officer, Catherine Michel has extensive experience with technology as she leads the company's entire product portfolio and strategy. But she's also no stranger to merging technology and culture, having taken a company — Tribold — from inception to acquisition (by Sigma in 2013), and she continues to advise service providers on how to drive their own transformations. This impressive female leader and vocal advocate for other women in the industry will join Women in Comms for a live radio show to discuss all things digital transformation, including the cultural transformation that goes along with it.

Like Us on Facebook
Twitter Feed