NSA Eavesdroppers: How Long Have They Listened?

Feb. 7, 2006 — -- Consumer advocates and privacy groups renewed pleas for the release of more information on the National Security Agency's telephone surveillance program after a newspaper reported that telecommunications giants AT&T, MCI and Sprint had cooperated with the government.

As part of the program, the NSA listened without warrants to the international phone calls of people with suspected ties to terrorists. According to a story in Monday's USA Today, the phone companies granted the government access to their networks without court orders.

One consumer advocacy group said the relationship between consumers and their phone service providers could change as more customers became aware that conversations once assumed to be private could be subject to government eavesdropping.

"Network operators have always functioned as neutral transmitters, meaning they don't control who you call, when you call, et cetera. So until this point, consumers were led to believe that they would not monitor communication on their networks absent a warrant," said Jeannine Kenney, senior policy expert at Consumers Union.

With the rising threat of identity theft, Kenny said consumers are more aware than ever of the possibility that others are monitoring their actions online. But the idea that phone communications might also be monitored is something that consumers may not have considered.

"Consumers have come to expect that no one is tapping their phones without some kind of probable cause. The question this brings up is, does this signal a change in the policy of big telecom companies?" Kenny said.

Mergers May Have Eased Access

A recent spate of telecom mergers may have made government access easier. MCI was acquired by WorldCom, AT&T was acquired by SBC Communications and Sprint merged with Nextel. As a result, the three companies now handle the majority of U.S.-based international calls.

Consumer groups voiced disapproval of the mergers because of concerns about decreased price competition. The mergers may have had the effect of making government access easier.

"There are fewer gatekeepers you have to deal with this to get this information, for sure," Kenney said.

All three companies refused to comment on the matter, and a spokesperson from the U.S. Telecom Association, the telecommunications industry trade group, said the association would not comment on individual companies or matters related to national security.

How Long Have They Been Listening?

The NSA program has received considerable scrutiny. Attorney General Alberto Gonzales today went before a Senate panel to defend the legality of the NSA's surveillance program. Gonzales said the program was reasonable, contending that because the nation is at war, the president is entitled to more powers, including eavesdropping on U.S. citizens without warrants, than during peacetime.

His defense of the program was met with considerable skepticism, and the senator in charge of Monday's hearing, Sen. Arlen Specter, R-Pa., said Gonzales did not adequately justify the Bush administration's decision to not seek court approval.

One privacy advocate said both the public and the media have yet to ask the most important question: How long has the government been listening in?

"We all assume that what has happened the last couple years is unprecedented, but the truth is, we don't know if that's the case," said David Sobel, general counsel of the Electronic Privacy Information Center.

Sobel said warrantless surveillance may have been going on even before the public revealing of the NSA program last year. EPIC has filed a federal lawsuit asking that the courts require the NSA to divulge the details of the surveillance program.

It is likely the government presented the companies with documents certifying the need to grant network access without warrants, Sobel said. Legally, the telecommunications companies are immune to any liability if a top government official produces documents certifying that the government needs access for national security reasons.

"It's unlikely that this would be just an oral agreement. If they were pushed to produce those documents, they probably could," he said.

The documentation may also have included a stipulation that the companies not publicly disclose their agreements with the government.

"There's probably a gag order that prohibits them from disclosing that they were directed to provide assistance," Sobel said. "That puts them in a little bit of a bind in terms of the public face of this situation."

If certifying documentation was offered by someone like the attorney general, Sobel said it was likely the companies would give the government the requested access.

"The solution is not that people need to vent against their telecom companies. They need to really demand accountability on the part of the government to find out how widespread this is and how long it has been going on," he said.