How the telephone company listens in on your calls and what they tell
Two months after the New York Times revealed that the Bush Administration ordered
the National Security Agency to conduct warrantless surveillance of American
citizens, only three corporations--AT&T, Sprint and MCI--have been identified
by the media as cooperating. If the reports in the Times and other newspapers
are true, these companies have allowed the NSA to intercept thousands of telephone
calls, fax messages and e-mails without warrants from a special oversight court
established by Congress under the 1978 Foreign Intelligence Surveillance Act
(FISA). Some companies, according to the same reports, have given the NSA a
direct hookup to their huge databases of communications records. The NSA, using
the same supercomputers that analyze foreign communications, sifts through this
data for key words and phrases that could indicate communication to or from
suspected terrorists or terrorist sympathizers and then tracks those individuals
and their ever-widening circle of associates. "This is the US version of
Echelon," says Albert Gidari, a prominent telecommunications attorney in
Seattle, referring to a massive eavesdropping program run by the NSA and its
English-speaking counterparts that created a huge controversy in Europe in the
So far, a handful of Democratic lawmakers--Representative John Conyers, the
ranking Democrat on the House Judiciary Committee, and Senators Edward Kennedy
and Russell Feingold--have attempted to obtain information from companies involved
in the domestic surveillance program. But they've largely been rebuffed. Further
details about the highly classified program are likely to emerge as the Electronic
Frontier Foundation pursues a lawsuit, filed January 31, against AT&T for
violating privacy laws by giving the NSA direct access to its telephone records
database and Internet transaction logs. On February 16 a federal judge gave
the Bush Administration until March 8 to turn over a list of internal documents
related to two other lawsuits, filed by the American Civil Liberties Union and
the Electronic Privacy Information Center, seeking an injunction to end the
Despite the President's rigorous defense of the program, no company has dared
to admit its cooperation publicly. Their reticence is understandable: The Justice
Department has launched a criminal investigation of the government officials
who leaked the NSA story to the Times, and many constitutional scholars and
a few lawmakers believe the program is both illegal and unconstitutional. And
the companies may be embarrassed at being caught--particularly AT&T, which
spent millions advertising its global services during the Winter Olympics. "It's
a huge betrayal of the public trust, and they know it," says Bruce Schneier,
the founder and chief technology officer of Counterpane Internet Security, a
California consulting firm.
Corporations have been cooperating with the NSA for half a century. What's
different now is that they appear to be helping the NSA deploy its awesome computing
and data-mining powers inside the United States in direct contravention of US
law, which specifically bans the agency from collecting information from US
citizens living inside the United States. "They wouldn't touch US persons
before unless they had a FISA warrant," says a former national security
official who read NSA intercepts as part of his work for the State Department
and the Pentagon.
This is happening at a time when both the military and its spy agencies are
more dependent on the private sector than ever before, and an increasing number
of companies are involved. In the 1970s, when Congress acted to stop domestic
spying programs like Operation Shamrock, in which the NSA monitored overseas
telegrams and phone calls, the communications industry was in its infancy. "It
was basically Western Union for cables, and AT&T for the telephone,"
says James Bamford, who revealed the existence of the NSA in his famous book
The Puzzle Palace and is a plaintiff in the ACLU lawsuit. "It's much more
complicated now." In fact, today's global telecom market includes dozens
of companies that compete with AT&T, Sprint and MCI for telephone and mobile
services, as well as scores of Internet service providers like Google, Yahoo!
and AOL that offer e-mail, Internet and voice connections to customers around
the world. They are served by multinational conglomerates like Apollo, Flag
Atlantic and Global Crossing, which own and operate the global system of undersea
fiber-optic cables that link the United States to the rest of the world. Any
one of them could be among the companies contacted by intelligence officials
when President Bush issued his 2002 executive order to obtain surveillance without
Nobody's talking, though. Asked if AT&T, which was recently acquired by
SBC Communications, is cooperating with the NSA, AT&T spokesman Walt Sharp
said, "We don't comment on national security matters." He referred
me to a recent AT&T letter to Representative Conyers, which stated that
AT&T "abides by all applicable laws, regulations and statutes in its
operations and, in particular, with respect to requests for assistance from
governmental authorities." MCI, which was acquired in January by Verizon,
and Sprint, which recently merged with Nextel Communications, declined to comment.
Attorney Gidari, who has represented Google, T-Mobile, Nextel and Cingular Wireless
(now part of AT&T), believes that "some companies, both telecom and
Internet," were asked to participate in the NSA program. But he suggests
that only a limited number agreed. "The list of those who said no is much
longer than most people think," he says.
The NSA, some analysts say, may have sought the assistance of US telecoms because
most of the world's cable operators are controlled by foreign corporations.
Apollo, for example, is owned by Britain's Cable & Wireless, while Flag
Atlantic is owned by the Reliance Group of India. Much of the international
"transit traffic" carried by the cable companies flows through the
United States (this is particularly true of communications emanating from South
America and moving between Asia and Europe). The NSA could get access to this
traffic by sending a submarine team to splice the cables in international waters,
as the agency once did to the Soviet Union's undersea military cables. But that
is an extremely expensive proposition, and politically dicey to boot--which
is where the US telecoms come in. "Cooperation with the telcos doesn't
make NSA surveillance possible, but it does make it cheaper," says Schneier,
the technology consultant.
According to Alan Mauldin, a senior research analyst with TeleGeography Research
in Washington, DC, it would be possible for US intelligence operatives to gain
access to transit traffic from anywhere in the country with the cooperation
of a US company. "You could be inland, at an important city like New York
or Washington, DC, where networks interconnect, and you could have the ability
to tap into the whole network for not only that city but between that city and
the rest of the world," he says. Foreign-owned cable operators, says Gidari,
are also required by US law to maintain security offices manned by US citizens,
with background checks and security clearances at the landing sites in Oregon,
Florida, New Jersey and other states where fiber-optic cables come ashore.
The government has gone to great lengths to insure law-enforcement access to
foreign-owned telecom companies. Take the example of Global Crossing, which
owns several undersea cable systems and claims to serve more than 700 carriers,
mobile operators and ISPs. Three years ago, as Global Crossing was emerging
from one of the largest bankruptcies in US history, it was purchased by ST Telemedia,
which is partly owned by the government of Singapore. As part of the US approval
process (which occurred at a time when Global Crossing was being advised by
Richard Perle, then-chairman of Donald Rumsfeld's Defense Policy Board), the
company signed an unprecedented Network Security Agreement with the FBI and
the Defense Department. Under the agreement, which is on file with the Federal
Communications Commission, Global Crossing pledged that "all domestic communications"
would pass through a facility "physically located in the United States,
from which Electronic Surveillance can be conducted pursuant to lawful US process."
(Global Crossing declined to comment.) Legal experts say the wording is significant
in the context of the NSA spying flap, but cautioned not to read too much into
it. "These agreements are not uncommon in the industry," says James
Andrew Lewis, director of the Technology and Public Policy Program at the Center
for Strategic and International Studies in Washington. "They provide assurances
that US interests won't suffer damage with foreign ownership."
History proves a good guide to how the NSA would go about winning cooperation
from a telecom company. When telephone and telegraph companies began assisting
the NSA during the 1940s, only one or two executives were in on the secret.
That kind of arrangement continued into the 1970s, and is probably how cooperation
with the NSA works today, says Kenneth Bass III, a Justice Department official
during the Carter Administration. "Once the CEO approved, all the contacts
[with the intelligence agencies] would be worked at a lower level," he
says. "The telcos have been participating in surveillance activities for
decades--pre-FISA, post-FISA--so it's nothing new to them." Bass, who helped
craft the FISA law and worked with the NSA to implement it, adds that he "would
not be surprised at all" if cooperating executives received from the Bush
Administration "the same sort of briefing, but much more detailed and specific
than the FISA court got when [the surveillance] was first approved."
For US intelligence officials looking for allies in the industry, AT&T,
MCI and Sprint have a lot to offer. In 2002, when the spying program began,
AT&T's CEO was C. Michael Armstrong, the former CEO of Hughes Electronic
Corp. At the time, Armstrong was also chairman of the Business Roundtable's
Security Task Force, where he was instrumental in creating CEO COM LINK, a secure
telecommunications system that allows the chief executives of major US corporations
to speak directly to senior members of Bush's Cabinet during national emergencies.
Randall Stephenson, a former SBC Communications executive who is now AT&T's
chief operating officer, is a member of the National Security Telecommunications
Advisory Committee, a group of executives from the communications and defense
industries who advise the President on security issues related to telecom.
Those executives, all of whom hold security clearances, meet at the White House
once a year--Vice President Cheney was the speaker at their last meeting--and
hold quarterly conference calls with high-ranking officials. (Asked if the NSA
surveillance was ever discussed at these sessions, committee spokesman Stephen
Barrett said, "We do not participate in intelligence gathering.")
AT&T also makes no bones about its national security work. When SBC was
preparing to acquire the company last year, the two companies underscored their
ties with US intelligence in joint comments to the FCC. "AT&T's support
of the intelligence and defense communities includes the performance of various
classified contracts," the companies said, pointing out that AT&T "maintains
special secure facilities for the performance of classified work and the safeguarding
of classified information."
MCI, too, is a major government contractor and was highly valued by Verizon
in part because of its work in defense and intelligence. Nicholas Katzenbach,
the former US Attorney General who was appointed chairman of MCI's board after
the spectacular collapse of its previous owner, WorldCom, reiterated MCI's intelligence
connections in a 2003 statement to the Senate Judiciary Committee. "We
are especially proud," he wrote, "of our role in supporting our national-security
agencies' infrastructure, and we are gratified by the many positive comments
about our service from officials at the US Department of Defense and other national-security
agencies." MCI's general counsel--who would presumably have a say in any
decision to cooperate with the NSA--is William Barr. He is a former assistant
general counsel at the Central Intelligence Agency and served as Attorney General
during the Administration of President George H.W. Bush.
Sprint Nextel is top-loaded with executives with long experience in national
security and defense. Chairman and CEO Gary Forsee is a member of Bush's telecom
council (as is Lawrence Babbio, the vice chairman and president of Verizon).
Keith Bane, a company director, recently retired from a twenty-nine-year career
with Motorola, which has worked closely with US intelligence for decades. William
Conway Jr. and former FCC chairman William Kennard are managing directors of
the Carlyle Group, the Washington private equity fund that invests heavily in
the military and has extensive contacts in the Bush Administration.
There's another group of companies, largely overlooked, that could also be
cooperating with the NSA. These are firms clustered around the Beltway that
contract with the agency to provide intelligence analysts, data-mining technologies
and equipment used in the NSA's global signals-intelligence operations. The
largest of them employ so many former intelligence officials that it's almost
impossible to see where the government ends and the private sector begins. Booz
Allen Hamilton, the prime contractor for Trailblazer, a huge NSA project updating
its surveillance and eavesdropping infrastructure, employs several NSA alumni,
including Mike McConnell, its vice president, who retired as NSA director in
1996. (Ralph Shrader, the company's CEO, joined Booz Allen in 1978 after serving
in senior positions with Western Union and RCA, both of which cooperated with
the NSA on Operation Shamrock.) SI International, a software and systems engineering
company with NSA contracts, recently hired Harry Gatanas, the NSA's former director
of acquisitions and outsourcing, to oversee its $250-million-a-year business
with US intelligence and the Pentagon. Science Applications International Corporation,
another big NSA contractor, is run by executives with long histories in military
intelligence, including COO Duane Andrews, a former Assistant Secretary of Defense
for Command, Control, Communications and Intelligence.
Are firms that cooperate with the NSA legally culpable? Bamford, who is not
a lawyer but probably knows more about the NSA than any American outside government,
says yes. "The FISA law is very clear," he says. "If you don't
have a warrant, you're in violation, and the penalty is five years and you can
be sued by the aggrieved parties." Kevin Bankston, an attorney for the
Electronic Frontier Foundation, adds that US law "not only prohibits unauthorized
wiretapping; it also prohibits unauthorized disclosure or use of illegally wiretapped
information. As long as you were doing that, you're potentially liable."
Schneier, the technology consultant, harbors no doubts either. "Arguing
that this is legal is basically saying we're in a police state."
But Gidari, the Seattle telecom attorney, believes that companies would be
insulated from legal challenges if they had assurances from the government that
the program was within the law. He also says Congress has passed legislation
granting immunity to companies operating under "statutory grants of authority"
from the government. "It's not a slamdunk, but it is a good-faith defense,"
he says. Former Justice Department official Bass agrees but says reliance on
oral requests from US officials is another matter: "If they didn't get
the type of legal assurances the FISA provides for"--such as a written
statement from the Attorney General--"there could be some legal exposure."
But a full airing of the legal issues raised by the surveillance program may
be a long time coming. "The likelihood of any enforcemenhttp://www.alternet.org/rights/33334/
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