http://www.thenation.com/doc/20060605/shapiro
The Wiretapping Tango
by BRUCE SHAPIRO
[from the June 5, 2006 issue]
As more facts emerge in the NSA's warrantless call-tracking scandal,
it's clear that this isn't about government abuses alone: It's also a
delicate tango between security agencies and telecommunications
executives. The government may lead, but its essential partners are
the phone companies that own the switches, computers and call-routing
software.
To me and other residents of at least one American city, this is a
familiar dance. Beginning in 1964 New Haven police persuaded
executives of the Southern New England Telephone Company (today part
of AT&T) to let officers monitor traffic on the phone company's
mainframe. "Ordinary citizens" supposedly had nothing to fear: At
first the warrantless taps were aimed at illegal gambling. But as the
1960s drew on and New Haven was roiled by protest, this limited
collaboration between law enforcement and the private sectors turned
into a massive twenty-four-hour-a-day operation--in its way a
primitive, small-city form of data-mining. If someone on the NHPD
wiretap list received or made a call, the party on the other end was
identified from SNET's records and added to the list. Soon it grew by
the hundreds. When the program was shut down in 1971, the list
included Black Panthers, law professors, feminists, a movie theater
and a dry cleaner, with details of their calls hand-noted on 3-by-5
cards. As with the NSA it was only infighting and a leak to a
journalist that exposed the wiretap program and led to a lawsuit
against the city and SNET.
By the mid-1970s illegal phone company cooperation with surveillance
had become a scandal nationwide. Though no city's taps topped New
Haven's, in cities like New York and Chicago, local police red squads
routinely relied on friendly telecommunications executives for access
to records. Under J. Edgar Hoover, the FBI did the same. In 1975 the
Senate committee investigating government surveillance activities,
headed by Frank Church, revealed that phone companies had for years
allowed warrantless surveillance by the National Security Agency under
the code name Operation Shamrock: computerized monitoring of all
telegraphic data into and out of the United States. As Jason Vest of
the Project on Government Oversight notes on POGO's blog, in 1976
Representative Bella Abzug did exactly what Senator Arlen Specter is
threatening to do today--she subpoenaed top officials of Western
Union, ITT and RCA Global.
Indeed, today's NSA scandal and the Administration's response to the
revelations track directly back to that era. When Abzug issued her
subpoenas, Dick Cheney and Donald Rumsfeld--President Ford's Chief of
Staff and Defense Secretary, respectively--persuaded the Justice
Department to assert unprecedented claims of executive privilege not
only over FBI and NSA testimony but also over that of Western Union
and RCA. The companies, perhaps fearful of contempt citations from a
Democratic Congress, refused to comply and provided Abzug with her
documents.
In retrospect it's clear that the Bush Administration has
systematically sought a return to the days of phone company
collaboration in warrantless surveillance. One key provision of the
Patriot Act of 2001 allows modification of court-enforced consent
decrees in cities like Chicago that blocked phone company cooperation
with warrantless surveillance requests. In 2003 the White House went
further, with Patriot Act II: Section 313, which passed the House but
failed in the Senate and would have eliminated any civil liability for
telecommunications companies cooperating with federal surveillance
requests.
With the NSA scandal, the Administration smells opportunity. If
Specter subpoenas telecom CEOs, look for this White House to reassert
the executive privilege claims that failed in 1975--and this time,
without fear of an opposition Congress, those CEOs may feel inclined
to cooperate, establishing a new and dangerous zone of presidential
power.
Will the phone companies become permanent auxiliary partners in
illegal spying and pawns of an Administration bent on ever-expanding
executive power? As Congress and the telecom companies decide how to
respond to the burgeoning scandal, they should learn one thing from
the New Haven case: The cost of corporate cooperation in illegal
surveillance is ultimately huge. In New Haven taxpayers in a
cash-strapped city paid 1,200 victims $1.75 million, while the
officials who ordered the operation remained immune. That's not just
vast legal costs borne by the city and SNET. With a much-deserved
lawsuit already filed in the NSA case, it is taxpayers, consumers and
shareholders--not George W. Bush or telecom CEOs--who will eventually
pay the bill.
But the cost is more than financial. The habit of casual illegal
activity poisoned several successive New Haven administrations and
damaged the reputations of phone company executives. The program,
started as a law-enforcement expedient, fed a larger pattern of police
and FBI spying, which, as the Church committee noted about New Haven,
produced enormous volumes of dross "intelligence" without preventing
crime. The question is not data-mining but whether the Senate
Judiciary Committee--and perhaps the court system--will have the
political will and legal fortitude to stand up for the rule of law, or
whether the clock will be turned back and it will be as if the reforms
of the 1970s had never happened.