Compensating the Dragnet

The first and second primary orders approving the phone dragnet, written by Malcolm Howard, included this paragraph.

(2) NSA shall compensate [redacted] for reasonable expenses in providing such tangible things;

The third primary order, written by Frederick Scullin, had no such paragraph.

There’s a likely explanation for the disappearance of the paragraph. The Section 215 statute does not provide for compensating providers.

I have no idea whether this means the telecom providers aren’t getting compensated (unlikely) or whether they’re getting compensated in some other fashion (my bet).

But Congress’ failure to include any compensation for responding to a Section 215 order is one more indication that they didn’t believe they were signing off on daily production of “substantially all” of providers’ metadata.

That raises another question, however. If Congress did not envision paying providers to comply with a Section 215 order, were they paid? If so, with what funds? Who approved such spending?

Update: The Verizon secondary order from April doesn’t reflect any compensation.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

7 replies
  1. Jonathan says:

    Flex nets don’t keep score like that, do they? Maybe favorable policy is (and has been) a sufficient and more deniable form of compensation. Or maybe there are still plenty of favors owed for that half-trillion-dollar National Information Infrastructure boondoggle.

  2. allan says:

    “Nice CEO gig you’ve got there. It would be a shame if anything happened,
    like what happened to Joe Nacchio.”

  3. klynn says:

    @bmaz:

    I agree. However, it may not be spelled out clearly. And, it may get spelled out indirectly through one of their lobbying firms.

  4. Missed Call says:

    Makes me wonder, if telecos are excused from reporting this income on their SEC balance sheet, how or if this ever trickles through to ordinary shareholders:

    “The budget documents obtained by The Post list $65.96 million for BLARNEY, $94.74 million for FAIRVIEW, $46.04 million for STORMBREW and $9.41 million for OAKSTAR. It is unclear why the total of these four programs amounts to less than the overall budget of $278 million.”

    “In response to questions in 2012 from then-Rep. Edward J. Markey (D-Mass.), who was elected to the Senate in June, several telecommunications companies detailed their prices for surveillance services to law enforcement agencies under individual warrants and subpoenas. AT&T, for example, reported that it charges $325 to activate surveillance of an account and also a daily rate of $5 or $10, depending on the information gathered. For providing the numbers that have accessed cell towers, meanwhile, AT&T charged $75 per tower, the company said in a letter.”

    “Among the possible costs covered by these amounts are “network and circuit leases, equipment hardware and software maintenance, secure network connectivity, and covert site leases,” the documents say. They also list in a separate line item $56.6 million in payments for “Foreign Partner Access,” although it is not clear whether these are for foreign companies, foreign governments or other foreign entities.”

    [Foreign entitites? Süddeutsche Zeitung 2 August 2013 based on internal GCHQ powerpoint from 2009: Verizon (Dacron), BT (Remedy), Vodafone Cable (Gerontic), Global Crossing (Pinnage), Level 3 (Little), Viatel (Vitreous) and Interoute (Streetcar)]

    “There is no record in the documents obtained by The Post of money set aside to pay technology companies that provide information to the NSA’s PRISM program. That program is the source of 91 percent of the 250 million Internet communications collected through Section 702 of the FISA Amendments Act, which authorizes PRISM and the upstream programs, according to an 2011 opinion and order by the Foreign Intelligence Surveillance Court.”

    http://www.washingtonpost.com/world/national-security/nsa-paying-us-companies-for-access-to-communications-networks/2013/08/29/5641a4b6-10c2-11e3-bdf6-e4fc677d94a1_story.html

    http://www.theguardian.com/business/2013/aug/02/telecoms-bt-vodafone-cables-gchq

Comments are closed.