- Related Stories
-
Judge denies AT&T request for closed hearing
May 17, 2006 -
Telecoms deny illegally handing over call records
May 17, 2006 -
Verizon sued for alleged NSA cooperation
May 15, 2006 -
FAQ: NSA's data mining explained
May 12, 2006 -
EFF reaches out to D.C. with new office
April 27, 2006 -
Yahoo on NSA surveillance: No comment
February 15, 2006 -
Gonzales: NSA may tap 'ordinary' Americans' e-mail
February 6, 2006 -
AT&T sued over NSA spy program
January 31, 2006 -
Editing tips from the NSA
January 24, 2006 -
Bush allies defend NSA surveillance
January 24, 2006
Federal law may "authorize and in some cases require telecommunications companies to furnish information" to the executive branch, said Bradford Berenson, who was associate White House counsel when President Bush authorized the NSA surveillance program in late 2001 and is now a partner at the Sidley Austin law firm in Washington, D.C.
Bradford Berenson
Far from being complicit in an illegal spying scheme, Berenson said, "AT&T is essentially an innocent bystander."
AT&T may be referring to an obscure section of federal law, 18 U.S.C. 2511, which permits a telecommunications company to provide "information" and "facilities" to the federal government as long as the attorney general authorizes it. The authorization must come in the form of "certification in writing by...the Attorney General of the United States that no warrant or court order is required by law."
Information that is not yet public "would be exculpatory and would show AT&T's conduct in the best possible light," Berenson said. But he did not acknowledge any details about the company's alleged participation in the NSA's surveillance program, which has ignited an ongoing debate on Capitol Hill and led to this class-action lawsuit being filed in January by the Electronic Frontier Foundation.
Some legal experts say that AT&T may be off the hook if former Attorney General John Ashcroft, who was in office at the time the NSA program began, provided a letter of certification. (Other officials, including the deputy attorney general and state attorneys general, also are authorized to write these letters.)
"If the certification exists, AT&T is in pretty good shape," said Marc Rotenberg, executive director of the Electronic Privacy Information Center and co-author of a book on information privacy law.
EFF's lawsuit alleges that the telecommunications company let the NSA engage in wholesale monitoring of Americans' communications in violation of privacy laws. Confidential documents that EFF unearthed during the course of the suit--kept under seal and still not public--allege that AT&T gave the government full access to its networks in a way that let millions of e-mail messages, Web browsing sessions and phone calls be intercepted.
AT&T's ace in the hole?
If a letter of certification exists, AT&T could have an ace in the hole. A second section of federal law says that a "good faith" reliance on a letter of certification "is a complete defense to any civil or criminal" lawsuit.
During the hearing Wednesday before U.S. District Judge Vaughn Walker, Deputy Assistant Attorney General Carl Nichols also hinted that such a letter exists. Nichols said that there are undisclosed "facts that AT&T might want to present in its defense."
AT&T's legal defense?
An obscure section of federal law says that AT&T may have legally participated in the NSA surveillance program -- if, that is, it received a "certification" from the attorney general.
That section says: "Notwithstanding any other law, providers of wire or electronic communication service... are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications... if such provider... has been provided with... a certification in writing by... the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required, setting forth the period of time during which the provision... is authorized... No provider of wire or electronic communication... shall disclose the existence of any interception or surveillance or the device used to accomplish the interception or surveillance..."
But, Nichols added, those facts relate to classified information that are "state secrets" and would jeopardize national security if they were disclosed. A hearing on the Bush administration's request to dismiss the case on national security grounds has been scheduled for June 23.
For its part, AT&T has remained silent about the extent of its alleged participation in the NSA surveillance scheme, which initially was thought to apply only to international calls but now may encompass records of domestic phone calls and more. Verizon and BellSouth, for instance, took steps to distance themselves from a USA Today report that said their call databases were opened to the NSA. BellSouth on Thursday demanded a retraction. But AT&T wouldn't comment.
Marc Bien, a spokesman for AT&T, told CNET News.com on Wednesday: "Without commenting on or confirming the existence of the program, we can say that when the government asks for our help in protecting national security, and the request is within the law, we will provide that assistance."
The next tussle in this lawsuit is likely to center on how far the "state secrets" concept can extend. Is AT&T able to divulge the text of any certification letter, without saying exactly what information it turned over as a result? Must the mere existence of a certification letter remain secret?
Injecting additional complexity is 18 U.S.C. 2511's prohibition on disclosure. It says that telecommunication companies may not "disclose the existence of any interception or surveillance or the device used to accomplish the interception or surveillance"--except if required by law. Unlawful disclosures are subject to fines.
EFF claims that the existence of a letter of certification should not be classified. Cindy Cohn, an EFF attorney, told the judge on Wednesday that it is "not a state secret because the statute has a whole process" governing it.
"If you have a certification, let's see it," EFF attorney Lee Tien said in an interview after the hearing.
For his part, Berenson, the former attorney for President Bush who's now representing AT&T, complained about allegations that his client is violating the law. It's unfortunate that EFF "chose to use words like 'criminal tendency' and 'crimes,'" Berenson said. AT&T "is one of the great companies of the United States. To attach those kinds of labels is reckless at best."
Berenson's biography says he worked for Bush on the "war on terrorism" and the USA Patriot Act. Since leaving the White House, Berenson has written letters to Congress (click here for PDF) calling for renewal of the Patriot Act and has co-founded a group called Citizens for the Common Defence that advocates a "robust" view of presidential authority. It filed, for instance, an amicus brief (click here for PDF) before the Supreme Court in the Hamdi case arguing that a U.S. citizen could be detained indefinitely without trial because of the war on terror.
See more CNET content tagged:
NSA, AT&T Corp., information privacy, certification, telecommunications company
Yes, it would jeopardize the national security of anyone who authorized this and doesn't want to go to jail.
Yes, it would jeopardize the national security of anyone who authorized this and doesn't want to go to jail.
Email? Web? Yahoo? AOL? Mining the text of emails? Non-
electronic network analysis? Newsgroups?
I don't think anyone has suggested the domestic-to-
international tapping and the phone log analysis is all there is to
it.
So what else?
I think widespread outrage is on the horizon.
Email? Web? Yahoo? AOL? Mining the text of emails? Non-
electronic network analysis? Newsgroups?
I don't think anyone has suggested the domestic-to-
international tapping and the phone log analysis is all there is to
it.
So what else?
I think widespread outrage is on the horizon.
The more telling aspect of this instance is that AT&T would use a lawyer to defend it who was a Bush attorney and advocate of the notion that Bush has unrestricted powers by virtue of his position as Commander in Chief in time of war. There are no credible constitutional authorities who believe that. Therefore, the lawyer AT&T has chosen will himself be a point of contention.
It would seem that the people running AT&T have themselves blundered twice. When Quest was asked for its records, it refused and the Bush people backed off. Why did the government back off? Because they knew that going after Quest to make it comply would bring unwanted publicity about what the government was doing. AT&T blundered again when it chose a highly controversial lawyer associated with Bush to defend itself.
Of course these are same people who ran SBC when that company bought AT&T and lobbied the Bush administration not to invoke antitrust law to block the buy-out. AT&T owed Bush one. That is the really sad part of this. It was *** for tat, big business/government, and the public be hanged.
The more telling aspect of this instance is that AT&T would use a lawyer to defend it who was a Bush attorney and advocate of the notion that Bush has unrestricted powers by virtue of his position as Commander in Chief in time of war. There are no credible constitutional authorities who believe that. Therefore, the lawyer AT&T has chosen will himself be a point of contention.
It would seem that the people running AT&T have themselves blundered twice. When Quest was asked for its records, it refused and the Bush people backed off. Why did the government back off? Because they knew that going after Quest to make it comply would bring unwanted publicity about what the government was doing. AT&T blundered again when it chose a highly controversial lawyer associated with Bush to defend itself.
Of course these are same people who ran SBC when that company bought AT&T and lobbied the Bush administration not to invoke antitrust law to block the buy-out. AT&T owed Bush one. That is the really sad part of this. It was *** for tat, big business/government, and the public be hanged.
This is truly sickening.
This is truly sickening.
Also given what happened at QWEST, watch these headless chickens start running around in circles!!!!!
For both the US Constitution, and amendments are inviolate(US Supreme Court Decisions, no illegal law agency fishing is permitted period), and also the Telecommuniction Privacy Act 1986, has specific fines per violation!!!!, and the Patriot Act has specific minimum legal requirements, also the oath of the office of the president means that bearer is beholden to all congressional laws!
It is a pity that a group non government lawyers were forced into a class action to uphold the laws of congress, for that shows that, the current encumbemt, A R Gonzales has literally failed to uphold the oath of his office when he was sworn in!
Oh well, looks like a quickie settlement is comming very soon within the next couple of weeks!!!!!
Still, such bad timing of the President spying on and profiling all the country's citizens and treating them as enemy combatants per se, can have little positive effects for the reelection of encumbent Republican candidates for both houses in the upcoming mid terms!!!!
Also given what happened at QWEST, watch these headless chickens start running around in circles!!!!!
For both the US Constitution, and amendments are inviolate(US Supreme Court Decisions, no illegal law agency fishing is permitted period), and also the Telecommuniction Privacy Act 1986, has specific fines per violation!!!!, and the Patriot Act has specific minimum legal requirements, also the oath of the office of the president means that bearer is beholden to all congressional laws!
It is a pity that a group non government lawyers were forced into a class action to uphold the laws of congress, for that shows that, the current encumbemt, A R Gonzales has literally failed to uphold the oath of his office when he was sworn in!
Oh well, looks like a quickie settlement is comming very soon within the next couple of weeks!!!!!
Still, such bad timing of the President spying on and profiling all the country's citizens and treating them as enemy combatants per se, can have little positive effects for the reelection of encumbent Republican candidates for both houses in the upcoming mid terms!!!!
party headquarters.
If Bush can get away with spying on the entirety of the American
people without getting impeached that would be out of balance.
party headquarters.
If Bush can get away with spying on the entirety of the American
people without getting impeached that would be out of balance.
party headquarters.
If Bush can get away with spying on the entirety of the American
people without getting impeached that would be out of balance.
If politicians spy on other politicians, that's a crime against the political party that's being spied on. That political party just won't stand for this. The general rules of politics mandate that political parties get rid of all opposition using any means they can get away with. Legal, Constitutional, or otherwise, if they can get away with it then they will do it. This goes for all times too. Doesn't matter if they're spied on, lied to, or simply disagreed with. Doesn't matter if it was yesterday, today, or tomorrow. The goal of politics is to eliminate the dissenting view.
The situation we have here is politicians spying on citizen constituents. That's different. Politicians don't give a rats ass about the principles involved. Bush has ALREADY gotten away with this; therefore, a) it'll never go away, and b) the 'real issue' (to the politicians) is controlling public perception about the governance of this program.
Loop
party headquarters.
If Bush can get away with spying on the entirety of the American
people without getting impeached that would be out of balance.
If politicians spy on other politicians, that's a crime against the political party that's being spied on. That political party just won't stand for this. The general rules of politics mandate that political parties get rid of all opposition using any means they can get away with. Legal, Constitutional, or otherwise, if they can get away with it then they will do it. This goes for all times too. Doesn't matter if they're spied on, lied to, or simply disagreed with. Doesn't matter if it was yesterday, today, or tomorrow. The goal of politics is to eliminate the dissenting view.
The situation we have here is politicians spying on citizen constituents. That's different. Politicians don't give a rats ass about the principles involved. Bush has ALREADY gotten away with this; therefore, a) it'll never go away, and b) the 'real issue' (to the politicians) is controlling public perception about the governance of this program.
Loop
our president, who is beholding to congressional laws, has decided he san subvert then whenever he pleases. all in the name of national security. is there an armada parked south of florida? are there americans working in cahoots with these imaginary enemies? are these enemies dumb enough to use a copper line to plan the new revolution. why wouldnt they all buy Trac Phones or use encrypted VOIP? i doubt that a government that failed to stop hijacked airplanes - when they had a memeo stating that the terrorists weretraining to fly planes but not land them, that had a suspect in custody and let him go, and never bothered to scramble jets to shoot the damn things down - has the ability to protect us from anything.
and who is this imaginary enemy that has you all so terrified? a terorist group managed to kill 3,000 people at one time. not to sound cold about it, but thousands of american freeze, or starve to death every year. We should have wire tapped FEMA and the Weather Channel - and maybe we could have saved some of the Katrina Victims.
i'll take my chances with some freak terrorist group. just pay an attorney rto watch the weather channel. When the commentator says that the newest hurricane will kill thousands, load a couple half-tons (military trucks) with MREs and dispatch the national guard. thats all i ask.
or does dick cheney think he's god? is he the only man who can assure that there wont be a terrorist attack? so what if there is. Do i have to give up my freedoms and live as a suspect for the rest of my life in hopes of saving the next 3,000 people?
our president, who is beholding to congressional laws, has decided he san subvert then whenever he pleases. all in the name of national security. is there an armada parked south of florida? are there americans working in cahoots with these imaginary enemies? are these enemies dumb enough to use a copper line to plan the new revolution. why wouldnt they all buy Trac Phones or use encrypted VOIP? i doubt that a government that failed to stop hijacked airplanes - when they had a memeo stating that the terrorists weretraining to fly planes but not land them, that had a suspect in custody and let him go, and never bothered to scramble jets to shoot the damn things down - has the ability to protect us from anything.
and who is this imaginary enemy that has you all so terrified? a terorist group managed to kill 3,000 people at one time. not to sound cold about it, but thousands of american freeze, or starve to death every year. We should have wire tapped FEMA and the Weather Channel - and maybe we could have saved some of the Katrina Victims.
i'll take my chances with some freak terrorist group. just pay an attorney rto watch the weather channel. When the commentator says that the newest hurricane will kill thousands, load a couple half-tons (military trucks) with MREs and dispatch the national guard. thats all i ask.
or does dick cheney think he's god? is he the only man who can assure that there wont be a terrorist attack? so what if there is. Do i have to give up my freedoms and live as a suspect for the rest of my life in hopes of saving the next 3,000 people?
How long will it last? We'll see. If it's to end peacefully, then someone extraordinary is going to have to sneak up on the status quo and basically trick them.
law and regulations regarding the items and
access they allegedly provided. The law quite
specifically precludes turning them over to a
third party or the government without a specific
warrant.
The Attorney General can issue certifications on
the applicability of the law, but he cannot
authorize the breaking of the law. If the law
and its applicability is clear, the
certification is worthless (save to indict the
person that issued it improperly). AT&T would
argue that even if its issue was improper, they
are no less indemnified against suits since it's
the certification and not the validity of it
that indemnifies them. The court will first
determine if the certification was valid within
the law under which it was issued (probably
not), then considering that AT&T has been around
a while and has some experience with the
particular laws in question, the court will make
its judgment based on whether AT&T should have
known the certification was bogus and whether it
appears AT&T solicited the certification in an
attempt to have culpability for actions they
knew to be illegal to be indemnified. If the
court decides that the certification was
improper, and there wasn't really any question
that AT&T was breaking the law (and they knew
it), the certification itself would probably be
vacated.
The text of the applicable laws are online, it
doesn't take but a few minutes to find them and
only slightly longer to read them. IANAL, but to
me they are pretty clear and very explicitly
state in no uncertain terms the rules for
turning over the information.
I don't think that a certification, even if they
had received one prior to providing access, is
an "ace-in-the-hole". I don't think AT&T thinks
that either, otherwise it would have been on the
judge's desk the day the suit was filed and the
case would have been dismissed by now.
- It's all part of the new world order
- by casper2004 May 18, 2006 6:57 AM PDT
- Squashing the dissenting view is necessary to achieve order, but, how long will it last? Nothing lasts forever.
- Like this Reply to this comment
-
-
- Life is not the goal
- by scdecade May 18, 2006 7:14 AM PDT
- The goal of the US politicians participating in the crackdown on freedom is not a better life here and hereafter. Not in the slightest. It's about the duality of satisfying their ego with (arbitrary and capricous) 'power' now (this split second) and delaying their eventual realization that their ego is not real. Most will gladly die before they confront these truths. And a few will take everyone else down with them if they can...
- Like this View reply
Processing -
- The loophole may not be that big...
- by Zymurgist May 18, 2006 7:23 AM PDT
- AT&T's lawyers are no doubt keenly aware of the
- Like this View reply
Processing -
Showing 1 of 3 pages (102 Comments)How long will it last? We'll see. If it's to end peacefully, then someone extraordinary is going to have to sneak up on the status quo and basically trick them.
law and regulations regarding the items and
access they allegedly provided. The law quite
specifically precludes turning them over to a
third party or the government without a specific
warrant.
The Attorney General can issue certifications on
the applicability of the law, but he cannot
authorize the breaking of the law. If the law
and its applicability is clear, the
certification is worthless (save to indict the
person that issued it improperly). AT&T would
argue that even if its issue was improper, they
are no less indemnified against suits since it's
the certification and not the validity of it
that indemnifies them. The court will first
determine if the certification was valid within
the law under which it was issued (probably
not), then considering that AT&T has been around
a while and has some experience with the
particular laws in question, the court will make
its judgment based on whether AT&T should have
known the certification was bogus and whether it
appears AT&T solicited the certification in an
attempt to have culpability for actions they
knew to be illegal to be indemnified. If the
court decides that the certification was
improper, and there wasn't really any question
that AT&T was breaking the law (and they knew
it), the certification itself would probably be
vacated.
The text of the applicable laws are online, it
doesn't take but a few minutes to find them and
only slightly longer to read them. IANAL, but to
me they are pretty clear and very explicitly
state in no uncertain terms the rules for
turning over the information.
I don't think that a certification, even if they
had received one prior to providing access, is
an "ace-in-the-hole". I don't think AT&T thinks
that either, otherwise it would have been on the
judge's desk the day the suit was filed and the
case would have been dismissed by now.