Telecoms Versus the Toobz: The Source of the Legal Troubles

In this important piece on overbroad surveillance programs under Presidents Bush and Obama, the WaPo reveals that the program James Comey almost resigned over in 2004 involved sucking Internet metadata off telecom switches owned by the telecoms.

Telephone metadata was not the issue that sparked a rebellion at the Justice Department, first by Jack Goldsmith of the Office of Legal Counsel and then by Comey, who was acting attorney general because John D. Ashcroft was in intensive care with acute gallstone pancreatitis. It was Internet metadata.

At Bush’s direction, in orders prepared by David Addington, the counsel to Vice President Richard B. Cheney, the NSA had been siphoning e-mail metadata and technical records of Skype calls from data links owned by AT&T, Sprint and MCI, which later merged with Verizon.

For reasons unspecified in the report, Goldsmith and Comey became convinced that Bush had no lawful authority to do that.

This leads me to wonder whether legal leverage from the Internet providers — rather than any squeamishness about the law itself — caused the conflict.

Remember, in the fight over retroactive immunity in 2008, the industry group for the Internet providers — including Microsoft, Yahoo, and Google — argued against retroactive immunity.

The Computer & Communications Industry Association (CCIA) strongly opposes S. 2248, the “FISA Amendments Act of 2007,” as passed by the Senate on February 12, 2008. CCIA believes that this bill should not provide retroactive immunity to corporations that may have participated in violations of federal law. CCIA represents an industry that is called upon for cooperation and assistance in law enforcement. To act with speed in times of crisis, our industry needs clear rules, not vague promises that the U.S. Government can be relied upon to paper over Constitutional transgressions after the fact.

Given the WaPo’s report, this amounts to a demand that Congress allow the Internet companies to hold the telecoms accountable for helping the government seize their data.

As well they should have been able to. To a degree, these companies compete, and in the name of helping the government, the telecoms were helping themselves to Internet suppliers crown jewels.

Microsoft and Google versus AT&T and Verizon. Now that would have been an amusing lawsuit to watch. And probably a lot bigger worry for the people who use all of them to spy on us peons than we peons actually are.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

6 replies
  1. Saul Tannenbaum says:

    This is fascinating. It’s so clearly old-school telecomm (AT&T, Verizon) that have a decades-long legacy of cooperating with intellligence agencies versus the new guys who come from a very different ethos. I would love to read, in the context of the corporate histories, about the moments when Google/Microsoft/etc realized that their respective services had become interesting enough that intelligence agencies wanted a peek in to see what was going on. I

  2. Snoopdido says:

    I think you’ve nailed it Emptywheel even with just your title of “Telecoms Versus the Toobz”.

    Remember the 2nd paragraph of the CCIA’s self-serving diatribe against the telecoms:

    “CCIA dismisses with contempt the manufactured hysteria that industry will not aid the United States Government when the law is clear. As a representative of industry, I find that suggestion insulting. To imply that our industry would refuse assistance under established law is an affront to the civic integrity of businesses that have consistently cooperated unquestioningly with legal requests for information. This also conflates the separate questions of blanket retroactive immunity for violations of law, and prospective immunity, the latter of which we strongly support.”

    The Toobz boys ranted in opposition to the telecoms’ retroactive immunity, but they were slobbering over getting prospective immunity for themselves.

  3. emptywheel says:

    @Saul Tannenbaum: Though I think there’s a lot of reason to believe MSFT may be collaborating on far more (not least bc email is not its main product). And remember, it started giving the govt “direct” access before PAA, much less FAA, even passed.

  4. Saul Tannenbaum says:

    @emptywheel: I was talking more about techno-political heritage that comes out of the (former) Bell system companies. They’re used to be the well-regulated monopolies and government cooperation came with the territory. They were also used to a philosophy of expensive reliability engineering which was funded by their well-regulated monopoly prices. Then the Internet came along with its best-effort engineering philosophy, one that was much cheaper, more distributed and unregulated. This was, in the corridors of the industry associations, viewed as an insurgency, and there was real animosity about the competing models. (You can see the legacy of that insurgency today in the continuing effort of trans-national regulators like the ITU attempting to bring the internet to heel.)

    I wasn’t meaning to imply that the insurgent Internet companies didn’t cooperate with the government or that there was a bright line separating the old guard from the new. But at some point, there was an inflection when the new guard became the status quo. As a piece of corporate anthropology, that would have been a facinating moment to observe.

  5. emptywheel says:

    @Saul Tannenbaum: Ah, I get what you’re saying.

    The same legacy may influence the degree to which the might (and Google appears to be trying to) distinguish themselves competitively via transparency about this stuff.

  6. Saul Tannenbaum says:

    @emptywheel: Absolutely. The techno-libertarian streak still exists in Silicon Valley though, as you become a worldwide publicly traded company, you’ve got to accept that the laws of the land do still apply to you, much as you wish the Internet to be some sort of lawless entity that exists outside of the nation state. (When you look at the fiber optic infrastructure gets the internet to large chunks of Asia and Africa, it’s really stunning to realize that they very much parallel ancient trade routes with many of the same choke points. The more things change, the more they remain the same.)

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