AT&T employee-turned-whistleblower Mark Klein, a 62-year-old retired telecommunications technician, was in Washington Wednesday to meet with members of Congress to convince them that telecommunications companies shouldn’t get immunity for the part they played in helping the National Security Agency (NSA) collect and record massive amounts of Americans’ Internet communications.
When Klein worked for AT&T in 2002, he said he received e-mails from higher management advising technicians of a special visit from the NSA and that an NSA agent was going to interview another technician for a “special job.” In January 2003, he toured AT&T’s Folsom Street facility in San Francisco, where a new 24-by-48-foot secret room was being built adjacent to telecommunications switches.
At the time, Klein was a fiber optics technician, and he said he became aware that AT&T’s WorldNet Internet service’s optical circuits had been split so that electronic voice and data traffic from AT&T’s customers could be copied and diverted to the secret room, which was locked and controlled by the NSA.
“My job required me to enable the physical connections between AT&T customers’ Internet communications and the NSA’s illegal, wholesale copying machine for domestic e-mails, Internet phone conversations, Web surfing and all other Internet traffic. I have first-hand knowledge of the clandestine collaboration between one giant telecommunications company, AT&T, and the National Security Agency to facilitate the most comprehensive illegal domestic spying program in history,” Klein stated.
Evidence for a Class Action Lawsuit
The Electronic Frontier Foundation (EFF) filed a class action lawsuit against AT&T in January 2006, accusing the telecom giant of violating the law and the privacy of its customers by collaborating with the NSA in its massive program to wiretap and data-mine Americans’ communications, actions which the EFF said are illegal. On July 20, 2006, a federal judge denied the government’s and AT&T’s motions to dismiss the case, chiefly on the ground of the States Secrets Privilege, allowing the lawsuit to go forward. On Aug. 15, the case was heard by the Ninth Circuit Court of Appeals.
The EFF lawsuit arose from news reports in December 2005, which first revealed that the NSA had been intercepting Americans’ phone calls and Internet communications without any court oversight, which the EFF said violates privacy safeguards established by Congress and the U.S. Constitution. This surveillance program, purportedly authorized by President Bush as early as 2001, intercepts and analyzes phone and Internet communications of millions of ordinary Americans. EFF has complied and published supporting documents, reports and court materials on its AT&T Class Action area on its Web site.
On behalf of a nationwide class of AT&T customers, EFF says it’s suing “to stop this illegal conduct and hold AT&T responsible for violating the law and the fundamental freedoms of the American public.”
The EFF scored a minor victory Tuesday when a federal judge ruled that AT&T must either halt any routine destruction of documents or arrange the preservation of accurate copies.
The Plot Thickens
Meanwhile, the Justice Department has reportedly sought to block the lawsuit — and as many as 40 other, similar suits with telecoms around the country — by using the state secrets privilege, which would block the release of any information that might endanger national security.
Last month, the Senate Intelligence Committee approved a bill that would reduce the government’s ability to eavesdrop on terrorism suspects and protect civil liberties, but which also includes a clause that would grant the telecommunications companies, including but not limited to AT&T, immunity from lawsuits stemming from privacy violations with the NSA.
Sen. Leahy and the White House
Sen. Patrick Leahy, a Vermont Democrat and chairman of the Senate Judiciary Committee, called out the immunity issue as a concern a week ago, both to the privacy of Americans as well as a shield for the Bush Administration.
“At the outset I should acknowledge the grave concern I have with one aspect of S.2248. It seeks to grant immunity — or, as Senator [Christopher] Dodd (D-Conn.) has called it, ‘amnesty’ — for telecommunications carriers for their warrantless surveillance activities from 2001 through this summer, which would seem to be contrary to FISA (Federal Intelligence Surveillance Act) and in violation of the privacy rights of Americans,” Leahy noted.
“I am considering carefully what we are learning from these materials,” he added. “Congress should be careful not to provide an incentive for future unlawful corporate activity by giving the impression that if corporations violate the law and disregard the rights of Americans, they will be given an after-the-fact free pass. If Americans’ privacy is to mean anything, and if the rule of law is to be respected, that would be the wrong result. A retroactive grant of immunity or preemption of state regulators does more than let the carriers off the hook. Immunity is designed to shield this administration from any accountability for conducting surveillance outside the law. It could make it impossible for Americans whose privacy has been violated illegally to seek meaningful redress.”
Rock and a Hard Place
Right or wrong, it is hard to imagine that the executives at any telecom were pleased to see the NSA show up at their doorsteps.
“My initial impression is that these companies are stuck. If they don’t give the government what it wants, the government comes after them. If they give the government what it wants, then private parties comes after them,” Jeff Kagan, a telecommunications industry analyst, told the E-Commerce Times. “Either way, they are exposed. I don’t think there’s a path for them to take that’s good for the shareholders or for the company.”
The people running the telecoms, it is easy to imagine, would likely have had some interest in helping protect Americans from terrorists, but at the same time they also have an interest in protecting those same Americans’ civil liberties — not to mention their own public images. “Those can be two competing thoughts — there’s not a solution that would satisfy everyone,” Kagan noted. “That’s the world we live in today whether we like it or not.”
The only major telecom widely reported to have stood up against the NSA request is Qwest.