Denver Post: Nod to Nacchio for "no" to NSA

[David Farber <dave () farber net>]

Begin forwarded message:

From: John Gilmore <gnu () toad com>
Date: May 12, 2006 3:53:40 PM EDT
To: eff-privacy () eff org
Subject: [E-PRV] Denver Post: Nod to Nacchio for "no" to NSA

[And in our most alliterative headline department...  He also makes
 the point that Nacchio may argue the insider-trading case is
 government retaliation.  If I were him, I would certainly be
 demanding any documents about communications between the FTC/DoJ
 prosecutors, and others advocating the prosecution.  --John]

http://www.denverpost.com/business/ci_3813009

al lewis | business columnist
Nod to Nacchio for "no" to NSA
By Al Lewis
Denver Post Staff Columnist

It pains me to say this, but perhaps no telecommunications executive
has done more to protect American civil liberties than Joe Nacchio -
an argument that bodes well for the former Qwest CEO in his upcoming
trial on insider-trading charges.

Nacchio just said "no" when the U.S. National Security Agency demanded
phone records of Qwest customers after the Sept. 11
attacks. Executives at AT&T Inc., BellSouth Corp. and Verizon
Communications Inc. did not have any such concern for customers'
privacy.

"We've got to give Qwest some credit for this," said Qwest customer Al
Kemp, 57, of Arvada. "They actually did the right thing for a
change. ... I don't like Nacchio very much, but apparently he's the
one who made this decision."

Nacchio reportedly stood against a trend that has members of Congress
promising to call AT&T, BellSouth and Verizon executives into
hearings.

If you are a customer of one of these companies, a list of calls
you've made over the years is now in a computer database run by
government spies, according to a report in Thursday's USA Today.

The Bush administration says it's all to catch al-Qaeda, but where are
the checks and balances to assure this data isn't misused in the
future?

Steve Posner is an Evergreen lawyer and the author of a legal
treatise, "Privacy Law and the USA Patriot Act." He contends the
government collected this data from phone companies without a required
court order.

"If they got the information without rules, where are the rules for
how it is treated?" he asked. "Can it be sold? Can it be distributed?
... It's conceivable this information can be used by people who are
not well-disposed toward you."

Good thing there are guys like Nacchio looking out for us. His
successor as CEO at Qwest, Dick Notebaert, also reportedly shut the
door on the NSA.

Nacchio, however, may not have exactly acted out of civic altruism,
said Posner.It's not clear whether the companies that provided the
information to the NSA are exempt from civil lawsuits. Perhaps Qwest's
legal team realized this and pushed Nacchio to say no to the NSA.

"He may have just been trying to cover his company's (tail)," said
Posner.

But Nacchio also was chairman of the National Security
Telecommunications Advisory Committee until he was ousted from Qwest
in June 2002.

In Nacchio's court motions, he has indicated that he will cite his
role in this capacity as part of his defense.

Nacchio's attorneys have had to get security clearances to even
discuss these matters with him, according to court motions. And they
have to meet in what is called a "Sensitive Compartmented Information
Facility," available to them only in Washington, D.C., and Denver. In
these rooms, all faxes, computer keystrokes and telephone and fax
transmissions are secured and isolated.

Nacchio's attorneys have argued that they need more time to prepare
their case because they have to fly from New Jersey to either
Washington or Denver to get access to these rooms.

"Tasks, which normally take hours, now require travel and instead take
days, if not weeks," they wrote.

I can picture Nacchio picking up his shoe-phone like a modern-day
Maxwell Smart. I think more of Nacchio for telling the NSA to take a
hike. But this doesn't cinch his defense against 42 counts of illegal
insider trading.

Perhaps news of his stand against the NSA may improve perceptions
among the jury pool. Perhaps he also can argue that the
insider-trading case against him is an example of government
retaliation.

But Qwest's $2.5 billion accounting restatement after Nacchio's tenure
was not the government's doing. Nor did the government tell Nacchio to
brag about Qwest's prospects as he dumped his stock. The relevant
question for a jury is whether Nacchio made these trades using
knowledge that only Qwest insiders would have.

Apparently, Nacchio knew that the NSA was not happy with him. But it's
not clear what bearing that information will have at his trial, which
has not been scheduled. One thing is clear: Nacchio did something a
lot of other telecommunications executives should have done too.

Al Lewis' column appears Sundays, Tuesdays and Fridays. Respond to him
at denverpostbloghouse.com/lewis, 303-820-1967 or
alewis () denverpost com.


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