NSA, AT&T, and the FCC

First we heard that AT&T, BellSouth, and Verizon were giving the NSA access to all of their calling records. Several days later Verizon and BellSouth came out with Clintonian denials: Verizon said they were “not asked by NSA to provide, nor did Verizon provide, customer phone records from any of these businesses (wireless telephone, wireless and directory publishing), or any call data from those records.” I'm guessing that this means they let the NSA tap in to the data so they wouldn't need to "provide" it. Also, Verizon excluded its MCI company from the denial.

Likewise, BellSouth said that an internal review had "confirmed no such contract exists and we have not provided bulk customer calling records to the NSA." (emphasis added.) President Bush offered, “We're not mining or trolling through the personal lives of millions of innocent Americans,” but otherwise seemed to concede the existence of the phone records program. And maybe this is his way of saying that we are spying on tens or hundreds of millions of innocent Americans...

AT&T (which owns SBC) has said that it "does not allow wiretapping without a court order nor has it otherwise given customer information to law enforcement authorities or government agencies without legal authorization." Of course "wiretapping," or listening to calls, is not what's at issue here. On a sidenote, AT&T’s lawyer used to represent President Bush and currently advocates publicly for a “robust” view of the executive powers.

The (il)legality of the NSA program(s) is hard to pin down. The Supreme Court has held that we have no Fourth Amendment interest in our phone records. So we are left with a mess of potential statutory violations and lawyerly exceptions. Orin Kerr makes an argument against the legality of the program, FCC Commissioner Michael J. Copps is calling for an investigation, and BellSouth, Verizon, and AT&T are all being sued in federal court.