The Spy Who Bills Us

Your telephone company is most likely cooperating with federal wiretapping programs. And guess what? It's illegal.

| Fri Feb. 24, 2006 1:00 AM PST

Article created by the The Century Foundation.

When your phone bill arrives this month, you might want to take a moment to think about how much you trust your telephone company. While the National Security Agency has gotten a lot of press since it was revealed in December that its analysts engaged in the warrantless surveillance of US citizens, the eavesdropping agency would not have been able to conduct the operation without the intimate—and likely illegal—cooperation of private telecommunications providers.

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After the terrorist attacks on Sept. 11, 2001, the NSA adopted a bold new approach. Seeking more unfettered access to the vast communications channels that run through the country, the agency approached executives at major telecommunications companies and requested that they provide the NSA with secret backdoors into the hubs and switches through which our telephone calls and e-mails are routed. Whereas the Foreign Intelligence Surveillance Act requires spies to obtain individual warrants for each target in an investigation, the phone companies provided unfiltered access to the full current of communications—not just Al Qaeda's calls, but everyone else's as well.

One problem with this approach is that it's like drinking from a fire hose. The NSA intercepts about 650 million communications worldwide every day, and, in something of a paradox, the better the agency is at hoovering in phone calls and e-mails, the worse it is at isolating critical and timely information from the white noise. According to recent reports, few of the tips the agency generated from its wiretapping program resulted in the identification of actual terrorists or plots.

Another problem is that trolling indiscriminately through the communications stream is illegal. The mechanism for eavesdropping established by the Foreign Intelligence Surveillance Act is simple: Target first, eavesdrop second. If there are grounds to suspect that a person is a terrorist or agent of a foreign power, a warrant is granted to spy on that person. With this new program, the agency has inverted the traditional steps: Eavesdrop first, then identify targets within the stream of intercepted communications.

Thus far, administration officials have successfully resisted efforts by Congress to address the probable inefficiency and definite illegality of this procedure, but in outsourcing the logistics of the operation to private telecommunications companies, they may have made a crucial error. Employees of the president might argue that ''executive privilege" frees them from responding to congressional inquiries about sensitive national security operations, but the CEOs of the telecom companies have no such easy out. Earlier this month, USA Today reported that AT&T, MCI, and Sprint are three of the companies that secretly cooperate with the NSA. Democratic Senators Edward M. Kennedy of Massachusetts and Russell Feingold of Wisconsin have written to the companies, asking about their involvement in the program, and if the Bush administration continues to resist congressional inquiries, the senators could subpoena executives of the companies and oblige them to explain their involvement.

Times of national crisis grant a certain license to the executive branch, and Attorney General Alberto Gonzales has argued, in effect, that as long as officials are endeavoring to keep the country safe, they need not answer questions about the particular means they employ to do so. Private companies have no such license, and AT&T, MCI, and Sprint should not be able to hide from the senators or from their own customers. If it is determined—as it probably will be—that the wiretapping program was illegal, then the telecom companies are guilty of violating federal law. In the meantime, it's clear that they have violated their own customer privacy policies. You might want to take another look at yours.

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