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WASHINGTON — The furor over the National Security Agency’s collection of Americans’ phone records intensified Friday, with one telecommunications giant facing a $5 billion damage suit for allegedly violating privacy laws and the former head of another firm saying through a lawyer that his company refused to participate because he thought the program was illegal.
Qwest, a Baby Bell serving 15 million customers in Washington and other mostly Western states, was approached in the fall of 2001 to permit government access to private phone records, according to an attorney for Joseph Nacchio, who at the time was Qwest’s chairman and CEO.
Nacchio refused because the government had failed to obtain a warrant or cross other legal hurdles to obtain the data, according to the lawyer, Herbert Stern.
“Mr. Nacchio concluded that these requests violated the privacy requirements of the Telecommunications Act,” Stern said Friday in a written statement.
The nation’s other major phone companies — AT&T, Verizon and BellSouth — have not acknowledged or denied cooperation with the NSA, despite published reports contending they have voluntarily turned over millions of records of customers’ everyday phone calls since the attacks of 2001. On Friday, the three firms issued statements declaring their commitment to protecting consumer privacy and operating within the law.
At the same time, two New Jersey public interest lawyers filed suit against Verizon in U.S. District Court in Manhattan, seeking $1,000 in damages for each record improperly turned over to the NSA or up to $5 billion in all.
“No warrants have been issued for the disclosure of such information, no suspicion of terrorist activity or other criminal activity has been alleged against the subscribers,” the suit alleges.
Peter Swire, an Ohio State University law professor who was the Clinton administration’s top adviser on privacy issues, said the 1986 Stored Communications Act forbids such a turnover to the government without a warrant or court order. The law gives consumers the right to sue for violations of the act and allows them to recover a minimum $1,000 for each violation.
“If you’ve got 50 million people, that’s potentially $50 billion,” Swire said. “I can’t figure out any defense here.”
The law does allow phone companies to hand over records in emergencies, but until recently that was defined very narrowly. Disclosure was limited to cases where the company “reasonably” believed there was an “immediate danger of death or serious physical injury” that disclosure might help prevent.
“If this was a program ongoing for several years, then it’s hard to say that there was a continuing reasonable belief of immediate danger over the entire time,” said Orin Kerr, a telecommunications law specialist at George Washington, on his Internet Web log.
As part of its renewal of the Patriot Act in March, Congress softened the language to the point where new disclosures of phone records might arguably pass muster, Kerr said. Phone companies no longer have to have a “reasonable” belief that death or injury lurks, only a “good faith” belief. They also no longer have to believe that such a tragedy is “immediate.”
The allegations of cooperation between phone giants and government intelligence operatives comes as little surprise to telecommunications industry insiders.
“There’s a history of close cooperation with the government that goes back to World War II,” said Bob Atkinson, policy research director at the New York-based Columbia Institute for Tele-Information. “It was especially true during the Cold War that the phone company was willing to go to the outer limits of the legal situation to cooperate with the government. Today there may be differences of opinion about the legality, but phone executives will err on the side of cooperation rather than non-cooperation.”
When federal authorities seek carrier cooperation in secret surveillance, as the NSA has done, it puts them “on the horns of a dilemma,” Atkinson said. “They can participate and be excoriated if it comes out, or they can choose not to participate and be excoriated if there’s an attack and their lack of cooperation is known.”
The controversies involving the NSA are sure to complicate Senate confirmation hearings on Hayden’s nomination as CIA director. Hayden may find himself fielding questions about whether the administration has reconstituted a heavily criticized massive data-collection effort known as Total Information Awareness that was once run by the Defense Department. It swept up billions of pieces of consumer and personal data and analyzed them in an attempt to detect patterns possibly linked to terrorism.
Following a public outcry over privacy concerns, the department said in 2003 it was dropping the program, which was an initiative of retired Navy Adm. John Poindexter, a central figure in the Reagan administration’s Iran-contra scandal.
The existence of a second covert information-gathering program suggests the administration has reconstituted at least parts of the TIA program, said former Sen. Bob Graham, D-Fla., a former chairman of the Senate Intelligence Committee.
At least parts of the TIA program have been revived at NSA, according to a Feb. 23 report in the National Journal. Earlier in February, Intelligence Committee member Sen. Ron Wyden, D-Ore., asked Hayden if several of the TIA programs had been shifted to other intelligence agencies.
“Senator, I’d like to answer you in closed session,” Hayden replied.
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