Telcos liability for NSA spying

Peter Swire and Judd Legg seem to be making a strong case that Telcos Could Be Liable For Tens of Billions of Dollars For Illegally Turning Over Phone Records to the National Security Agency, if yesterday's USA Today story has the facts of the situation clear. The EFF are currently suing AT&T for the company's involvement in the disclosure of personal communications data without appropriate authorisation. The government are trying to get the EFF suit dismissed. Swire and Judd say:

" Such conduct appears to be illegal and could make the telco firms liable for tens of billions of dollars. Here’s why:

1. It violates the Stored Communications Act. The Stored Communications Act, Section 2703(c), provides exactly five exceptions that would permit a phone company to disclose to the government the list of calls to or from a subscriber: (i) a warrant; (ii) a court order; (iii) the customer’s consent; (iv) for telemarketing enforcement; or (v) by “administrative subpoena.” The first four clearly don’t apply. As for administrative subpoenas, where a government agency asks for records without court approval, there is a simple answer – the NSA has no administrative subpoena authority, and it is the NSA that reportedly got the phone records.

2. The penalty for violating the Stored Communications Act is $1000 per individual violation. Section 2707 of the Stored Communications Act gives a private right of action to any telephone customer “aggrieved by any violation.” If the phone company acted with a “knowing or intentional state of mind,” then the customer wins actual harm, attorney’s fees, and “in no case shall a person entitled to recover receive less than the sum of $1,000.”

(The phone companies might say they didn’t “know” they were violating the law. But USA Today reports that Qwest’s lawyers knew about the legal risks, which are bright and clear in the statute book.)

3. The Foreign Intelligence Surveillance Act doesn’t get the telcos off the hook. According to USA Today, the NSA did not go to the FISA court to get a court order. And Qwest is quoted as saying that the Attorney General would not certify that the request was lawful under FISA. So FISA provides no defense for the phone companies, either.

In other words, for every 1 million Americans whose records were turned over to NSA, the telcos could be liable for $1 billion in penalties, plus attorneys fees. You do the math."

Update: the Guardian have a brief report on the controversy today as do the Independent.
Wired and News.com are also on the case.
William Gibson has had his two cents worth too.
Michael Froomkin thinks Attorney General Gonzales was Merely Parsimonious With the Truth and he recommends No need for Congress, no need for courts by Glenn Greenwald:

"This continuous evasion of judicial review by the administration is much more serious and disturbing than has been discussed and realized. By proclaiming the power to ignore Congressional law and to do whatever it wants in the area of national security, it is seizing the powers of the legislative branch. But by blocking courts from ruling on the multiple claims of illegality which have been made against it, the administration is essentially seizing the judicial power as well. It becomes the creator, the executor, and the interpreter of the law. And with that, the powers of all three branches become consolidated in The President, the single greatest nightmare of the founders. As Madison warned in Federalist 47:

From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers," he did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other.

His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted...

Amazingly, again and again, they don't even want their own Justice Department to know what they are doing because they are afraid that DoJ lawyers will tell them that it is against the law. They don't want to hear that it is against the law. As USA Today reported: "For similar reasons, this person said, NSA rejected Qwest's suggestion of getting a letter of authorization from the U.S. attorney general's office. A second person confirmed this version of events." They know very well that their conduct might be, and in some cases that it is definitely is, illegal, but they are purposely avoiding having the DoJ be able to opine on the legality of their behavior."