[NYTr] Bush Reich Wants to Protect Telecoms - After They Tapped Us Illegally

[All the News That Doesn't Fit]

The New York Times - Dec 14, 2007
http://www.nytimes.com/2007/12/16/washington/16nsa.html

Wider Spying Fuels Aid Plan for Telecom Industry

By ERIC LICHTBLAU, JAMES RISEN and SCOTT SHANE

WASHINGTON — For months, the Bush administration has waged a
high-profile campaign, including personal lobbying by President Bush
and closed-door briefings by top officials, to persuade Congress to
pass legislation protecting companies from lawsuits for aiding the
National Security Agency’s warrantless eavesdropping program.

But the battle is really about something much bigger. At stake is the
federal government’s extensive but uneasy partnership with industry to
conduct a wide range of secret surveillance operations in fighting
terrorism and crime.

The N.S.A.’s reliance on telecommunications companies is broader and
deeper than ever before, according to government and industry
officials, yet that alliance is strained by legal worries and the fear
of public exposure.

To detect narcotics trafficking, for example, the government has been
collecting the phone records of thousands of Americans and others
inside the United States who call people in Latin America, according to
several government officials who spoke on the condition of anonymity
because the program remains classified. But in 2004, one major phone
carrier balked at turning over its customers’ records. Worried about
possible privacy violations or public relations problems, company
executives declined to help the operation, which has not been
previously disclosed.

In a separate N.S.A. project, executives at a Denver phone carrier,
Qwest, refused in early 2001 to give the agency access to their most
localized communications switches, which primarily carry domestic
calls, according to people aware of the request, which has not been
previously reported. They say the arrangement could have permitted
neighborhood-by-neighborhood surveillance of phone traffic without a
court order, which alarmed them.

The federal government’s reliance on private industry has been driven
by changes in technology. Two decades ago, telephone calls and other
communications traveled mostly through the air, relayed along microwave
towers or bounced off satellites. The N.S.A. could vacuum up phone, fax
and data traffic merely by erecting its own satellite dishes. But the
fiber optics revolution has sent more and more international
communications by land and undersea cable, forcing the agency to seek
company cooperation to get access.

After the disclosure two years ago that the N.S.A. was eavesdropping on
the international communications of terrorism suspects inside the
United States without warrants, more than 40 lawsuits were filed
against the government and phone carriers. As a result, skittish
companies and their lawyers have been demanding stricter safeguards
before they provide access to the government and, in some cases, are
refusing outright to cooperate, officials said.

“It’s a very frayed and strained relationship right now, and that’s not
a good thing for the country in terms of keeping all of us safe,” said
an industry official who believes that immunity is critical for the
phone carriers. “This episode has caused companies to change their
conduct in a variety of ways.”

With a vote in the Senate on the issue expected as early as Monday, the
Bush administration has intensified its efforts to win retroactive
immunity for companies cooperating with counterterrorism operations.

“The intelligence community cannot go it alone,” Mike McConnell, the
director of national intelligence, wrote in a New York Times Op-Ed
article Monday urging Congress to pass the immunity provision. “Those
in the private sector who stand by us in times of national security
emergencies deserve thanks, not lawsuits.”

Attorney General Michael B. Mukasey echoed that theme in an op-ed
article of his own in The Los Angeles Times on Wednesday, saying
private companies would be reluctant to provide their “full-hearted
help” if they were not given legal protections.

The government’s dependence on the phone industry, driven by the
changes in technology and the Bush administration’s desire to expand
surveillance capabilities inside the United States, has grown
significantly since the Sept. 11 attacks. The N.S.A., though, wanted to
extend its reach even earlier. In December 2000, agency officials wrote
a transition report to the incoming Bush administration, saying the
agency must become a “powerful, permanent presence” on the commercial
communications network, a goal that they acknowledged would raise legal
and privacy issues.

While the N.S.A. operates under restrictions on domestic spying, the
companies have broader concerns — customers’ demands for privacy and
shareholders’ worries about bad publicity.

In the drug-trafficking operation, the N.S.A. has been helping the Drug
Enforcement Administration in collecting the phone records showing
patterns of calls between the United States, Latin America and other
drug-producing regions. The program dates to the 1990s, according to
several government officials, but it appears to have expanded in recent
years.

Officials say the government has not listened to the communications,
but has instead used phone numbers and e-mail addresses to analyze
links between people in the United States and overseas. Senior Justice
Department officials in the Bush and Clinton administrations signed off
on the operation, which uses broad administrative subpoenas but does
not require court approval to demand the records.

At least one major phone carrier — whose identity could not be
confirmed — refused to cooperate, citing concerns in 2004 that the
subpoenas were overly broad, government and industry officials said.
The executives also worried that if the program were exposed, the
company would face a public-relations backlash.

The D.E.A. declined to comment on the call-tracing program, except to
say that it “exercises its legal authority” to issue administrative
subpoenas. The N.S.A. also declined to comment on it.

In a separate program, N.S.A. officials met with the Qwest executives
in February 2001 and asked for more access to their phone system for
surveillance operations, according to people familiar with the episode.
The company declined, expressing concerns that the request was illegal
without a court order.

While Qwest’s refusal was disclosed two months ago in court papers, the
details of the N.S.A.’s request were not. The agency, those
knowledgeable about the incident said, wanted to install monitoring
equipment on Qwest’s “Class 5” switching facilities, which transmit the
most localized calls. Limited international traffic also passes through
the switches.

A government official said the N.S.A. intended to single out only
foreigners on Qwest’s network, and added that the agency believed
Joseph Nacchio, then the chief executive of Qwest, and other company
officials misunderstood the agency’s proposal. Bob Toevs, a Qwest
spokesman, said the company did not comment on matters of national
security.

Other N.S.A. initiatives have stirred concerns among phone company
workers. A lawsuit was filed in federal court in New Jersey challenging
the agency’s wiretapping operations. It claims that in February 2001,
just days before agency officials met with Qwest officials, the N.S.A.
met with AT&T officials to discuss replicating a network center in
Bedminster, N.J., to give the agency access to all the global phone and
e-mail traffic that ran through it.

The accusations rely in large part on the assertions of a former
engineer on the project. The engineer, who spoke on the condition of
anonymity, said in an interview that he participated in numerous
discussions with N.S.A. officials about the proposal. The officials, he
said, discussed ways to duplicate the Bedminster system in Maryland so
the agency “could listen in” with unfettered access to communications
that it believed had intelligence value and store them for later
review. There was no discussion of limiting the monitoring to
international communications, he said.

“At some point,” he said, “I started feeling something isn’t right.”

Two other AT&T employees who worked on the proposal discounted his
claims, saying in interviews that the project had simply sought to
improve the N.S.A.’s internal communications systems and was never
designed to allow the agency access to outside communications. Michael
Coe, a company spokesman, said: “AT&T is fully committed to protecting
our customers’ privacy. We do not comment on matters of national
security.”

But lawyers for the plaintiffs say that if the suit were allowed to
proceed, internal AT&T documents would verify the engineer’s account.

“What he saw,” said Bruce Afran, a New Jersey lawyer representing the
plaintiffs along with Carl Mayer, “was decisive evidence that within
two weeks of taking office, the Bush administration was planning a
comprehensive effort of spying on Americans’ phone usage.”

The same lawsuit accuses Verizon of setting up a dedicated fiber optic
line from New Jersey to Quantico, Va., home to a large military base,
allowing government officials to gain access to all communications
flowing through the carrier’s operations center. In an interview, a
former consultant who worked on internal security said he had tried
numerous times to install safeguards on the line to prevent hacking on
the system, as he was doing for other lines at the operations center,
but his ideas were rejected by a senior security official.

The facts behind a class-action lawsuit in San Francisco are also
shrouded in government secrecy. The case relies on disclosures by a
former AT&T employee, Mark Klein, who says he stumbled upon a secret
room at an company facility in San Francisco that was reserved for the
N.S.A. Company documents he obtained and other former AT&T employees
have lent some support to his claim that the facility gave the agency
access to a range of domestic and international Internet traffic.

The telecommunications companies that gave the government access are
pushing hard for legal protection from Congress. As part of a broader
plan to restructure the N.S.A.’s wiretapping authority, the Senate
Intelligence Committee agreed to give immunity to the
telecommunications companies, but the Judiciary Committee refused to do
so. The White House has threatened to veto any plan that left out
immunity, as the House bill does.

“Congress shouldn’t grant amnesty to companies that broke the law by
conspiring to illegally spy on Americans” said Kate Martin, director of
the Center for National Security Studies in Washington.

But Bobby R. Inman, a retired admiral and former N.S.A. director who
has publicly criticized the agency’s domestic eavesdropping program,
says he still supports immunity for the companies that cooperated.

“The responsibility ought to be on the government, not on the companies
that are trying to help with national security requirements,” Admiral
Inman said. If the companies decided to stop cooperating, he added, “it
would have a huge impact on both the timeliness and availability of
critical intelligence.”