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 6:43:00 PM EDT
To: "Stewart, William C (Bill), RTSLS" <billstewart () att com>
Cc: dave () farber net
Subject: RE: [IP] more on COMMENTS REQUESTED -- Apparent large telco  
liability based on USA Today facts

Stewart,

Don't confuse the toll (billing) records with audio transcriptions of  
calls. NSA is collecting billing records just like a marketing  
company does (telcos have sold customer data for a long time). What  
makes this unusual is that NSA have access to the raw data, more or  
less in real time. Marketing companies buy rolled up data that is  
nominally sanitized except for all your personal information  
(exemption 4 - for telemarketing enforcement).

As to your question, telco clients consent to the collection of  
billing records for law enforcement purposes. Telcos consent to the  
collection of billing records by the government (NSA) for law  
enforcement purposes as exempted by the Stored Communications Act,  
Section 2703(c) (iii) below. Exempted from opting out = automatically  
opted in.

You have exactly the same deal when getting treatment from your HMO/ 
PPO doctor under HIPAA. You automatically opt in to law enforcement  
collection of your medical data.

Simon


At 03:13 PM 5/12/2006, you wrote:
>  Hi, Simon - What specifically are you saying that telco clients  
> consent
> to?
> Wiretaps required by law that follow due process and get court orders?
> Wiretaps that are only supported by administrative subpoena without
> judicial supervision?
> Wiretaps that are responses to friendly requests from the NSA without
> even the formality of an administrative subpoena?
>
> I'd be pretty surprised by the latter....
>
> -----Original Message-----
> From: David Farber [mailto:dave () farber net]
> Sent: Friday, May 12, 2006 12:09 PM
> To: ip () v2 listbox com
> Subject: [IP] more on COMMENTS REQUESTED -- Apparent large telco
> liability based on USA Today facts
>
>
>
> 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
> >
> >
> >
> >
> > -------------------------------------
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>
> Best Regards,
>
> Simon Higgs
>
>
>
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Best Regards,

Simon Higgs



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