We should have read the fine print

May 12, 2006

So, why are most American [tag]telecom[/tag] companies turning over [tag]phone[/tag] records to the [tag]NSA[/tag] without a warrant? As Slate’s Eric Umansky noted, the companies apparently believe we already gave them [tag]permission[/tag] to do so.

One government lawyer who has participated in negotiations with telecommunications providers said the [tag]Bush[/tag] administration has argued that a company can turn over its entire database of customer records — and even the stored content of calls and e-mails — because customers “have [tag]consent[/tag]ed to that” when they establish accounts. The fine print of many telephone and Internet service contracts includes catchall provisions, the lawyer said, authorizing the company to disclose such records to protect public safety or national security, or in compliance with a lawful government request. (emphasis added)

“It is within their terms of service because you have consented to that,” the lawyer said. If the company also consents, “and they do it voluntarily, the U.S. government can accept it.”

Got that? When you signed up for phone service, you apparently told these telecom companies that they can give a secretive government agency access to all of your records, without a warrant, without suspicion of wrongdoing, and without concern for how those records might be used (or abused).

I knew I should have read the fine print.

Honestly, I don’t blame the Sadministration for pushing things like this. First and foremost, I blame and hold in absolute contempt all those morons who voted for this proven bunch of corrupt incompetents in 2004. I can only hope that some of them get abused by this program. Second, I blame the enablers–the GOP Congressmen/women. The DNC and every other Democratic Party alligned group had best get a very large chunk of change up and ready to start hard hitting ads that tie each and every one of these despicable congressmen/women with the actions of the Sadministration–something like “while Rep. X was asleep on the job, the Sadministration was secretly violating your civil rights, he/she never raised a finger, he she defended the Sadministration, he/she voted 95% with the Sadministration. It’s no wonder the Sadministration thought it could steal your personal information. Rep X is just as guily in his/her neglect of your rights.” These ads need to be played over and over and over again.

Oh, and I see Bush is at 29% in the latest Harris poll.

  • One Government Lawyer?

    Ah, the infamous ‘One Government Lawyer’. So the plain language of statues that say that the Feds can’t ask for this information without a warrant and just cause doesn’t matter, because there is a line of fine print in my contract saying I give up my rights?

    Someone needs to start rounding up these lawyers and explaining some facts to them. Such as, “compliance with a lawful government request” means the government got a warrant, not the government got an itch to know who everybody is calling.

  • Let’s all move to those phone companies that didn’t cooperate with NSA.

    Let’s punish those who collaborate with the dark side and reward those with courage to resist.
    Mere words of outrage are futile as so frequently demonstrated by Senator Spector.
    Basic behavior modification principles are in play and money is this the reinforcer.

  • Also makes one wonder about the requests for search information made by the government to Yahoo and Google.

  • Someone with more legal background than I needs to examine the legality of these claims. All I know is that every time I want a new piece of software I have to click the “accept” button; otherwise, the download process terminates.

    Here in the Pacific Northwest a federal judge decided in the 1970s that the native Americans were entitled to half the fish in Puget Sound, even though they signed away those rights in the 19th century. Judge Boldt’s reasoning, he said, was a basic principle in contract law, namely, the contract is to be interpreted as the less-sophisticated of the parties interprets it. Incidentally, Capt. Vancouver wrote in his journal that the Indians of this region were the most sophisticated traders he had ever encountered.

    Surely some experienced lawyer – a Democratic Attorney General? – can shred those “implied consent” documents we all click all the time. Maybe that’s the first step on the road to judicial removal of the “personhood” granted to corporations during the Robber Baron era. The first step on the road to restoring this nation to the kind of anti-corporate democracy FDR had in mind after the last Great Depression.

  • This is interesting because, as a lawyer, I actually checked AT&T’s privacy policy yesterday when I called them to complain about my phone records being illegally given to the NSA. I wanted to be able to complain that they were violating their own policies in addition to violating the law. Surprise, surprise, in addition to the notification that they MUST turn over records in the event of a subpoena or Court order, they included a provision that they MAY turn over records to prevent the illegal use of the telephone service. The person I spoke to was completely clueless–she didn’t even understand what I was talking about. She could not tell me when this provision was added to the privacy policy. She sent me on a wild goose chase to the subpoena department, which didn’t answer the phone. I tried to find the number for the legal department, but had to rush off for a commitment and couldn’t follow through. I will be following up again today.

  • I hope this administration and the GOP as well as all of those out there that voted for this president, like the place all this creative lawyering is taking us to. Torture, spying on American citizens without warrants, obssessive secrecy, extreme presidential powers……

    They had best not compain when some Democratic president uses the same arguments that Bush opened the door on to their advantage or their personal pet goals.

    This president/administration has taken the country to a place that I don’t think people really want to go. Many may not know we are there (or within a few inches of being there) becuase they were scared, trusting, blind, and/or stupid, but they best open their eyes before it is too late. The goalposts have been moved, the comfort level for government intrusion is that much more tolerated. It is hard to get traction on a slippery slope.

  • bubba – your ads would never get airtime. As we have seen before, progressive groups have a lot of trouble buying space in “our” airwaves.
    So add more people to the blame list, the broadcasters (also trying to emasculate the internet now), the FCC, and the shareholders in companies like Clear Channel and the Sinclair group.

  • It really comes down to is greed for the telephone companies. As far as we know there isn’t a “legal order” mandating these companies’ compliance. If there was, Qwest wouldn’t be the notable standout. Instead, the NSA offered bribes or shakedowns in the form of lucrative government contracts for their “voluntary” compliance. The telephone companies aren’t acting on some noble form of patriotism. Their only interest is the bottom line.

  • The argument that “we” gave the telecoms permission to turn over “our” phone records to the NSA is a variation on the same theme Alberto Gonzalez used about Congress in January — that Congress’s use-of-force authorization after 9/11 “gave” Bush “permission” to wiretap everyone without a court order in the first place.

  • It all comes down to whether the American people will stand up and finally say they’ve had enough. Already we see the familiar pattern emerging when a new Bush scandal is revealed: a little meaningless noise from Specter, some grumblings of feigned outrage from the docile Democrats, an MSM that treats it as just another partisan spat, and an apathetic public that . . . but we haven’t heard from them yet, have we? There’s a little hope here, because this revelation must have struck fear in the hearts of millions upon millions of people who have made phone calls that would be personally embarrassing, to say the least, if others became aware of them.

    But I’m guessing that won’t happen, and this scandal will go the way of all others – nowhere.

  • Congress should move to impeach Bush. I voted for him, but he’s out of control and I could hardly trust a Democratic administration that was voted in with the same Executive powers as Bush currently has, something which now appears not only possible, but likely.

    it’s time for Bush to pack up and leave office.

  • I haven’t looked at all of the privacy agreements, but I did look at my own for US Cellular, and it states very plainly that there must be a warrant or court order for them to share my personal info. And as Qwest refused for the same reasons, they wanted a court approval which was not forthcoming from NSA, I suspect that the policy of requiring a court order is common practice. Just because the NSA requested the cooperation did not require the telcos to comply. There was no court order requiring that cooperation because the NSA couldn’t get one for such widespread and untargeted snooping from FISA. The other telcos could’ve done the same as Qwest and refused access, but for some unknown reason they did not. There’s rumor at this point that they have been “compensated” either monetarily or by favor (net neutrality legislation pending?). The details will come out over time, and I suspect that people will be even more shocked and the % of those that think this okay will drop dramatically.

  • From Saturday’s NYTimes.

    Legal experts said the companies faced the prospect of lawsuits seeking billions of dollars in damages over cooperation in the program, citing communications privacy legislation stretching back to the 1930’s. A federal lawsuit was filed in Manhattan yesterday seeking as much as $50 billion in civil damages against Verizon on behalf of its subscribers.
    […]
    Orin Kerr, a former federal prosecutor and assistant professor at George Washington University, said his reading of the relevant statutes put the phone companies at risk for at least $1,000 per person whose records they disclosed without a court order.

    “This is not a happy day for the general counsels” of the phone companies, he said. “If you have a class action involving 10 million Americans, that’s 10 million times $1,000 — that’s 10 billion.”

    The New Jersey lawyers who filed the federal suit against Verizon in Manhattan yesterday, Bruce Afran and Carl Mayer, said they would consider filing suits against BellSouth and AT&T in other jurisdictions.

    “This is almost certainly the largest single intrusion into American civil liberties ever committed by any U.S. administration,” Mr. Afran said. “Americans expect their phone records to be private. That’s our bedrock governing principle of our phone system.” In addition to damages, the suit seeks an injunction against the security agency to stop the collection of phone numbers.

    We may soon if the “small print” does the Communications companies any good. Assuming the administration doesn’t invoke the “military and state secrets act.”

  • “provisions authorizing the company to disclose records to protect public safety or national security”

    Americans can argue that the disclosure did not protect public safety or national security if enough Americans think it’s more an invasion of privacy than a safety measure.

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