Tikun Olam-תיקון עולם: Make the World a Better Place

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By now, pretty much everyone knows about the latest bombshell to explode in George Bush’s lap regarding the NSA spying scandal. According to USAToday, the agency persuaded (without too much arm-twisting it appears) AT&T, Verizon and BellSouth to share virtually all their domestic phone records with the government. While the Administration is attempting to argue that the NSA is not mining the actual conversations themselves nor is it directly mining personal customer information (unless it finds a terror connection), this still is a deeply disturbing development. The reason is that during the last round of this scandal the feds tried to argue that they were only mining calls in which one of the participants was abroad. Now, they admit that the current aspect of the eavesdropping scandal focuses on ALL calls whether or not there’s an international component. The international-domestic distinction is important because the NSA has no legal mandate to monitor purely domestic phone traffic.

In addition, the phone companies’ willing complicity in this operation would appear to be a violation of federal law according to USAToday:

Under Section 222 of the Communications Act, first passed in 1934, telephone companies are prohibited from giving out information regarding their customers’ calling habits: whom a person calls, how often and what routes those calls take to reach their final destination. Inbound calls, as well as wireless calls, also are covered.

The financial penalties for violating Section 222, one of many privacy reinforcements that have been added to the law over the years, can be stiff. The Federal Communications Commission, the nation’s top telecommunications regulatory agency, can levy fines of up to $130,000 per day per violation, with a cap of $1.325 million per violation. The FCC has no hard definition of “violation.” In practice, that means a single “violation” could cover one customer or 1 million.

It should be added that the phone companies didn’t do this solely out of patriotic duty. According to USAToday, they were paid for their trouble:

The NSA made clear [to the phone companies] that it was willing to pay for the cooperation.

Before continuing my discussion of this story I did want to add one aspect of the USAToday story which I find journalistically troubling: there is no source provided for it. Leslie Cauley provides no information whatsoever on where this story originates. She doesn’t even try to cloak a source’s identity. There simply is not reference to a source. I find that unacceptable journalistic practice. I realize that in this draconian day and age when the government seems happy to send reporters to prison for revealing information that is in the public’s interest, perhaps Page wishes to superseal herself and her source in an impermeable protective coating. But it’s still disturbing and weakens the story.

Lookin’ mighty glum aren’t we, Mike? (photo: Doug Mills/NYT)

Of course, the creation of this massive domestic telecommunications database has other important repercussions. Michael Hayden is making the rounds on Capitol Hill rounding up support for his nomination to be CIA chief. This story certainly comes at the most inconvenient of times. It reminds all those who will vote on his confirmation that he’s the guy who oversaw the NSA spy program to begin with. I hope senators are sitting up and taking notice at this egregious violation of American civil liberties. How can they possibly promote this guy to run our national spy service–the CIA? Do we want to give a rogue military officer who’s proven himself capable of running a rogue spy operation an even broader platform to practice his brand of spy-knavery? “Rogue” probably was the wrong word to use in the previous sentence since Hayden created the program at the specific direction of the president. Therefore, you’d have to say that he was being a good soldier rather than a rogue. But being a good soldier for a bad cause is no less disturbing than being a rogue agent for a good one.

I’m hoping that Hayden is doing a “Harriet Myers” right before our eyes. Remember, she’s the hapless wonder who started out as a Supreme Court nominee and-by the time she retreated with her tail between her legs back to her White House lair after being bloodied by embarrassing gaffes and missteps–looked more like a whipped dog. Hayden’s looking pretty lame right about now. Anyone who votes for this guy should be made to look like an endorser of rampant lawlessness. Hayden has got to go.

I’m quite pleased to know that the Bushies have unleashed a truly loony-tunes spin story that this new development will actually redound to Bush’s benefit:

…Some Republicans argued that the debate could turn to Bush’s advantage by focusing on his efforts to fight terrorism — still the area in which he gets his strongest ratings, though his standing on this and other issues has eroded. Last month, 48% approved of Bush’s handling of terrorism; 50% disapproved.

“At first it sounds like, well, people’s privacy is being violated, but the more people learn about it, the more it plays to the president’s benefit,” said GOP strategist Charlie Black, a regular adviser to the Bush White House.

“If you think about it, going back to 9/11, every time the Democrats have disagreed with the president on a significant security issue, they have lost politically — every single time,” Black said.

Dream on, Chuck. I’d urge you to keep up in that vein because the American people are sure gonna buy the drivel you’re trying to sell ‘em.

But I don’t want to forget those three telephone companies. The NY Times quotes Sen. Chuck Grassley’s common sense comment about their behavior:

Senate Finance Chairman Chuck Grassley, R-Iowa, questioned why the phone companies would cooperate with the NSA.

“Why are the telephone companies not protecting their customers?” he said. “They have a social responsibility to people who do business with them to protect our privacy as long as there isn’t some suspicion that we’re a terrorist or a criminal or something.”

They deserve to face a consumer boycott for their cupidity and their blind willingness to betray their customer’s privacy (even though the feds claim they weren’t mining callers private data, the news stories make clear that it is quite easy for the NSA to procure that information once they have the individual’s call records). If BellSouth, Verizon or AT&T provide you landline or cell service, please consider cancelling your service immediately. I have cell service with Verizon. My first call tomorrow morning will be to a Verizon supervisor asking for clarification on the company’s policy of cooperation with NSA. If I do not receive word that Verizon is cancelling its participation in this program, then I will switch my service to Qwest.

I have to explain to you how difficult a decision this will be for me. I hate Qwest. I think they’re one of the worst phone companies I’ve ever seen. I give them business through clenched teeth. But this issue is important enough to me that I will ditch a company whose service I value: Verizon.

Qwest deserves lots of credit for standing up to this NSA lunacy. This passage from the USAToday story indicates that the company deserves a Red Badge of Courage award for keeping faith with its customers in the face of relentless government bullying:

According to sources familiar with the events, Qwest’s CEO at the time, Joe Nacchio, was deeply troubled by the NSA’s assertion that Qwest didn’t need a court order — or approval under FISA — to proceed. Adding to the tension, Qwest was unclear about who, exactly, would have access to its customers’ information and how that information might be used.

Financial implications were also a concern, the sources said. Carriers that illegally divulge calling information can be subjected to heavy fines. The NSA was asking Qwest to turn over millions of records. The fines, in the aggregate, could have been substantial.

The NSA told Qwest that other government agencies, including the FBI, CIA and DEA, also might have access to the database, the sources said. As a matter of practice, the NSA regularly shares its information — known as “product” in intelligence circles — with other intelligence groups. Even so, Qwest’s lawyers were troubled by the expansiveness of the NSA request, the sources said.

The NSA, which needed Qwest’s participation to completely cover the country, pushed back hard.

Trying to put pressure on Qwest, NSA representatives pointedly told Qwest that it was the lone holdout among the big telecommunications companies. It also tried appealing to Qwest’s patriotic side: In one meeting, an NSA representative suggested that Qwest’s refusal to contribute to the database could compromise national security, one person recalled.

In addition, the agency suggested that Qwest’s foot-dragging might affect its ability to get future classified work with the government. Like other big telecommunications companies, Qwest already had classified contracts and hoped to get more.

Unable to get comfortable with what NSA was proposing, Qwest’s lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.

The NSA’s explanation did little to satisfy Qwest’s lawyers. “They told (Qwest) they didn’t want to do that because FISA might not agree with them,” one person recalled. For similar reasons, this person said, NSA rejected Qwest’s suggestion of getting a letter of authorization from the U.S. attorney general’s office. A second person confirmed this version of events.

In June 2002, Nacchio resigned amid allegations that he had misled investors about Qwest’s financial health. But Qwest’s legal questions about the NSA request remained.

Unable to reach agreement, Nacchio’s successor, Richard Notebaert, finally pulled the plug on the NSA talks in late 2004, the sources said.

So please follow my lead if you’re a customer of any of those companies. They don’t deserve our patronage if they care so little for our personal privacy.

And while we’re at it we should hound our senators and representatives until they provide legislative protection for our phone records. They must never be made available in the way they have here without a specific court order.