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Telecoms may face trouble over phone records
WASHINGTON — Phone companies that shared their call records with the government may have violated federal law and could be on the hook for billions of dollars in civil liability, some of the nation's top experts in telecommunications law said Friday.
That's because Congress made it illegal 20 years ago for telephone companies and computer-service providers to turn over to the government records showing who their customers had dialed or e-mailed.
The information in those records enables U.S. intelligence agencies to track who calls whom and when, but does not include the contents of conversations.
The law doesn't make it illegal for the government to ask for such records. Rather, it makes it illegal for phone companies to divulge them.
"I would not want to be the general counsel of one of these phone companies," said Orin Kerr, a George Washington University law professor and a former Justice Department lawyer who has worked on electronic surveillance.
In the first legal action to result from the disclosure that the National Security Agency may have obtained the calling records of tens of millions of Americans, two New Jersey public-interest lawyers filed a suit Friday demanding up to $5 billion from telecommunications giant Verizon.
Verizon and the nation's other major phone companies — AT&T and BellSouth — have neither acknowledged nor denied that they voluntarily turned over millions of records of customers' everyday phone calls after the Sept. 11 attacks. On Friday, the three companies issued carefully worded statements declaring their commitment to protecting consumer privacy and operating within the law.
Meanwhile, the former head of another communications company said through his lawyer that he refused to participate because he thought the program was illegal.
Qwest, a Baby Bell serving 15 million customers in Washington and 13 other Western states, was approached in the fall of 2001 to permit government access to its phone records, according to the attorney for Joseph Nacchio, Qwest's chairman and CEO at the time.
Nacchio refused to turn over the records because the government had failed to obtain a warrant or cross other legal hurdles to obtain the data, according to the lawyer, Herbert Stern.
Bruce Afran and Carl Mayer, the lawyers who filed the federal suit against Verizon on Friday, said they would consider filing suits against BellSouth and AT&T.
"This is almost certainly the largest single intrusion into American civil liberties ever committed by any U.S. administration," Afran said.
The suit seeks $1,000 in damages for each record improperly turned over to the NSA, or up to $5 billion in all. The law gives consumers the right to sue for violations of the act and allows them to recover a minimum of $1,000 for each violation.
"No warrants have been issued for the disclosure of such information, no suspicion of terrorist activity or other criminal activity has been alleged against the subscribers," the suit alleges.
Peter Swire, an Ohio State University law professor who was the Clinton administration's top adviser on privacy issues, said the 1986 Stored Communications Act forbids such a turnover to the government without a warrant or court order.
"If you've got 50 million people, that's potentially $50 billion," Swire said. "I can't figure out any defense here."
Few details were known about how the records program works or what useful information the NSA may have gleaned from the data.
Law narrowly defined
The law does allow phone companies to hand over records in emergencies, but that was defined very narrowly until recently. Disclosure was limited to cases in which the company "reasonably" believed there was an "immediate danger of death or serious physical injury" that disclosure might help prevent.
"If this was a program ongoing for several years, then it's hard to say that there was a continuing reasonable belief of immediate danger over the entire time," Kerr said on his Web log.
As part of its renewal of the Patriot Act in March, Congress softened the language to the point where new disclosures of phone records arguably might pass muster, Kerr said. Phone companies no longer have to have a "reasonable" belief that death or injury lurks, only a "good faith" belief. They also no longer have to believe that such a tragedy is "immediate."
The 1986 law was passed when cellphones and the Internet were emerging. Section 2702 of the law says these providers of "electronic communications ... shall not knowingly divulge a record or other information pertaining to a subscriber or customer ... to any government entity."
"It is simply illegal for a telephone company to turn over caller records without some form of legal process, such as a court order or a subpoena," said James Dempsey, a lawyer for the Center for Democracy and Technology in San Francisco.
The 1986 law "was Congress' effort to create a comprehensive privacy right and to apply it to all forms of electronic communications," said Dempsey, then a counsel to the House Judiciary Committee.
The legal situation
Both Kerr and Dempsey said it is hard to analyze the legal situation because neither the Bush administration nor any of the phone companies has explained the legal basis for divulging the records. Under the law as written, however, "it looks like the disclosure is not allowed," Kerr said.
"If they did not have a court order, this is clearly illegal," said Kate Martin, a lawyer and director of the Center for National Security Studies in Washington.
A separate provision of the law says the FBI director may demand "billing records of a person" if the director "certifies in writing" that these records are "relevant to an authorized investigation to protect against international terrorism." But Martin noted it applies only to the FBI, not the NSA. Moreover, it focuses on those linked to a criminal investigation.
Bush administration officials may have argued they faced a national emergency. Many Americans feared another terrorist attack within the United States, and officials were eager to quickly gather as much information as possible.
"You can see how they could say that in the immediate aftermath of 9/11," Dempsey said. "I don't understand how that could serve as a 'good-faith' defense for years afterward."
The Associated Press, Chicago Tribune and Los Angeles Times contributed to this report.
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