more on COMMENTS REQUESTED -- Apparent large telco liability based on USA Today facts

[David Farber <dave () farber net>]

Begin forwarded message:

From: Simon Higgs <simon () higgs com>
Date: May 12, 2006 2:06:24 PM EDT
To: dave () farber net
Cc: Peter Swire <peter () peterswire net>
Subject: Re: [IP] COMMENTS REQUESTED -- Apparent large telco  
liability based on USA Today facts

Dave,

Here's your answer:

>(iii) the customer's consent;

If you look in the fine print of the contract, you'll find that  
customers consent to this as part of their terms of service. If they  
don't agree to this, they don't get service.

Simon


At 02:04 AM 5/12/2006, you wrote:
> Begin forwarded message:
>
> From: Peter Swire <peter () peterswire net>
> Date: May 11, 2006 8:28:39 PM EDT
> To: dave () farber net
> Subject: Apparent large telco liability based on USA Today facts
>
> Dave:
>
>         Perhaps your list can spot a flaw here.  Based on the  
> statutory
> language, it seems that the telcos face really large liability on the
> facts
> as reported in USA Today.
>
>         Thanks,
>
>         Peter
>
> http://thinkprogress.org/2006/05/11/telcos-liable/
>
> This morning, USA Today reported that three telecommunications
> companies -
> AT&T, Verizon and BellSouth - provided "phone call records of tens of
> millions of Americans" to the National Security Agency. Such conduct
> appears
> to be illegal and could make the telco firms liable for tens of
> billions of
> dollars. Here's why:
>
>     1. It violates the Stored Communications Act. The Stored
> Communications
> Act, Section 2703(c), provides exactly five exceptions that would
> permit a
> phone company to disclose to the government the list of calls to or
> from a
> subscriber: (i) a warrant; (ii) a court order; (iii) the customer's
> consent;
> (iv) for telemarketing enforcement; or (v) by "administrative
> subpoena." The
> first four clearly don't apply. As for administrative subpoenas,  
> where a
> government agency asks for records without court approval, there is a
> simple
> answer - the NSA has no administrative subpoena authority, and it is
> the NSA
> that reportedly got the phone records.
>
>     2. The penalty for violating the Stored Communications Act is
> $1000 per
> individual violation. Section 2707 of the Stored Communications Act
> gives a
> private right of action to any telephone customer "aggrieved by any
> violation." If the phone company acted with a "knowing or intentional
> state
> of mind," then the customer wins actual harm, attorney's fees, and
> "in no
> case shall a person entitled to recover receive less than the sum of
> $1,000."
>
>     (The phone companies might say they didn't "know" they were
> violating
> the law. But USA Today reports that Qwest's lawyers knew about the  
> legal
> risks, which are bright and clear in the statute book.)
>
>     3. The Foreign Intelligence Surveillance Act doesn't get the
> telcos off
> the hook. According to USA Today, the NSA did not go to the FISA
> court to
> get a court order. And Qwest is quoted as saying that the Attorney
> General
> would not certify that the request was lawful under FISA. So FISA
> provides
> no defense for the phone companies, either.
>
> In other words, for every 1 million Americans whose records were
> turned over
> to NSA, the telcos could be liable for $1 billion in penalties, plus
> attorneys fees. You do the math.
>
> Prof. Peter P. Swire
> C. William O'Neill Professor of Law
> Moritz College of Law of
>    The Ohio State University
> Visiting Senior Fellow, Center for American Progress
> (240) 994-4142, www.peterswire.net
>
>
>
>
> -------------------------------------
> You are subscribed as simon () higgs com
> To manage your subscription, go to
>  http://v2.listbox.com/member/?listname=ip
>
> Archives at: http://www.interesting-people.org/archives/interesting- 
> people/

Best Regards,

Simon Higgs



-------------------------------------
You are subscribed as lists-ip () insecure org
To manage your subscription, go to
 http://v2.listbox.com/member/?listname=ip

Archives at: http://www.interesting-people.org/archives/interesting-people/