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

[David Farber <dave () farber net>]

Begin forwarded message:

From: "Synthesis: Law and Technology"  
<synthesis.law.and.technology () gmail com>
Date: May 12, 2006 12:09:54 PM EDT
To: dave () farber net
Cc: peter () peterswire net
Subject: Re: [IP] COMMENTS REQUESTED -- Apparent large telco  
liability based on USA Today facts


Dave,

I doubt Peter expected us to find a flaw in his actual analysis since  
all the loop holes have already been covered and under the most  
extreme interpretations one would find it difficult to argue directly  
against his reasoning.  If there is a defence possible for the telcos  
it might be under yet-another discussion of the presidential  
authority (or the limits thereof).  The difference I see in this one  
(and I am most definitely not an expert on this) is the monetary  
one.  The direct civil cause of action in the statute would seem to  
incentive for this one to perhaps be taken further?

It will be interesting to observe, especially given Qwest's refusal  
to  comply (apparently without sanction?).  If Qwest had concerns and  
voiced them and was not forced to comply it would appear this could  
be a difficult one, and not just for the telcos.

Dan Steinberg

SYNTHESIS:Law & Technology
35, du Ravin phone: (613) 794-5356
Chelsea, Quebec
J9B 1N1
On 5/12/06, David Farber <dave () farber net> 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




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