Who needs a warrant?
From January 2005 to September 2007, Verizon provided data to federal authorities on an emergency basis 720 times, it said in the letter. The records included Internet protocol addresses as well as phone data. In that period, Verizon turned over information a total of 94,000 times to federal authorities armed with a subpoena or court order, the letter said. The information was used for a range of criminal investigations, including kidnapping and child-predator cases and counter-terrorism investigations.
What's worse, Verizona and AT&T say it's not their job to ensure that requests from the government for customer information are legal and above-board. As a result, the telecoms default to deference to any government request so long as it's not embarrassingly illegal.
AT&T and Verizon both argued that the onus should not be on the companies to determine whether the government has lawfully requested customer records. To do so in emergency cases would "slow lawful efforts to protect the public," wrote Randal S. Milch, senior vice president of legal and external affairs for Verizon Business, a subsidiary of Verizon Communications.
"Public officials, not private businessmen, must ultimately be responsible for whether the legal judgments underlying authorized surveillance activities turn out to be right or wrong -- legally or politically," wrote Wayne Watts, AT&T's senior executive vice president and general counsel. "Telecommunications carriers have a part to play in guarding against official abuses, but it is necessarily a modest one."
This is exactly backwards, of course. Companies have an obligation to protect their customers' privacy from intrusions by any unauthorized party. There's no good reason for treating a request from a government official any differently from a request from a divorce lawyer or a reporter; in the absence of a legal compulsion to surrender the data, it should remain private. If customers' privacy is willfully violated, the company should be held liable.
Not surprisingly, telecoms face a host of lawsuits for cooperating so eagerly with the government's warrantless surveillance efforts. Also unsurprisingly, Congress is moving to grant blanket immunity to anybody who helps the government spy on private citizens.
But why are the telecoms so quick to roll over for government investigators?
Honestly, such cozy arrangements are probably inevitable when the state has regulatory power to wield as a club. Telling government officials "no" could have dangerous results when the next antitrust hearing is held or future spectrum allocations are approved. There's always that fear that regulators will remember who's cooperative -- and who's not.
Add in the rah-rah post-9/11 political environment (however attenuated it's becoming), which has had much of the population cheering on even the most ridiculous government claims in the name of national security, and it's been a tough time for a corporate executive to decide that he's going to be the guy to tell the FBI to go fuck itself.
But that's all the more reason to work to kill efforts to immunize the private sector against lawsuits over privacy violations resulting from kowtowing to intrusive government demands. Lawsuits might at least make corporate executives think twice; immunity makes instant surrender the easy choice for all but the rare idealist in the boardroom.
And if private companies find it easy to surrender to government officials, we're just going to see more of this.