One possibility, based on something I saw from a purported whistleblower: the companies have provided the NSA with access to their equipment, and government is collecting the information directly.
Haven't government officials said that they can legally do what they're accused of, and implied that they are doing it? Or am I making this up, I don't remember at all where I saw that and I've been busy lately.
That's a definite possibility. What's fishy in that statement is the use of
"Verizon was not asked by NSA to provide, nor did Verizon provide, customer phone records"
Just because something isn't billed to the customer doesn't mean the switch routing the calls doesn't make a record. I've seen this stuff firsthand. I was a supervisor in the fraud department of a telco for a couple years, and have personally pulled call records for court orders numerous times. I left that company just before 9-11, so I never did one in the Patriot Act environment.
But from what I've seen of whistleblower statements and this "denial" of Verizon's, I'm guessing either the telco's are turning over raw switch data, or are allowing the NSA to put data traps in the networks to collect the data firsthand.
Couple other things that make me think SCMT is right.
Bush's phrase "The government does not listen to domestic phone calls..." Switch records are not audio files. They're often just large ASCII text files. Not "listening" to your calls does not mean switch records that include your calls aren't being collected and analyzed by NSA's software.
And look at Bell South's phrasing. "We have provided no customer information whatsoever to the NSA," That might be technically true if the NSA has their own data traps. The telco's would technically only be providing access. In their minds they can genuinely say aren't "providing customer information" as the government is the one doing the collecting.
1 sounds like a real possibility to me. "We didn't give them the records, we just allowed them to install these little gray boxes on all of our switches..."
If that's the case, I'd expect a follow-up story out of USA Today pretty soon.
...I'm guessing either the telco's are turning over raw switch data, or are allowing the NSA to put data traps in the networks to collect the data firsthand.
This was the case several years ago with the Carnivore program. It was a sealed box that the FBI wanted to be able to install in data centers and on data backbones to sit there and collect records of internet activity. It required the ISP in question to do nothing but let the folks in when they came to install it; it was data-only, and I believe warrants were required for its use.
My personal theory is that this is the new hybrid of Carnivore/Echelon/Total Information Awareness/whatever you want to call it and that's why the feds have freaked out about any discussion of it and have, since the international calls thing came out months ago, been pushing the 'loose lips sink ships' talking points. They can't seriously believe that the population doesn't assume that there is electronic surveillance of suspects and targets, so there has to be something more to their pants-pooping: that this is the next evolutionary step, the ability to track every kind of electronic communique between any one person and any other, whether phone or data. Maybe it does it in real-time. Maybe it offloads everything to the NSA in real time. Maybe Carnivore was simply shipped over to the NSA to make it harder to learn about, and something about that was illegal, and so that's why they're freaked out. Regardless, I think the government is collecting this data themselves and the phone companies have simply given them access and then washed their hands of it, and the data they're collecting (or capable of collecting) is far more than simply phone #'s.
On the other hand, the former head of Qwest is saying that the NSA asked that the phone companies provide the information to them, so there's an automatic strike against that theory.
The kind of analysis you can do is amazing. Because there's always attempts to create new schemes, good fraud software is very flexible. I could have put in a rule that said I was to be paged every time a certain customer called their mother.
One of the most entertaining aspects of that job was busting people calling international porn lines. Once, I called the owner of a business to tell him some long calls to an international "entertainment line" had been made from his business the night before. He told me to hold on, then called some guy into the office and starts cussing him out right there with me still on the line. Full on shouting.
"Make any calls last night? Then WHY THE FUCK is the phone company on the line telling me your phone was used to call a bunch of FUCKING PORN LINES?!"
FWIW, Verizon and Bell South are two of the companies that EFF is suing over this issue. So the statement will have been extremely heavily lawyered in the light of the pending litigation. My own bet is that "call data from those records" is the weasel phrase. But we'll find out, eventually.
I also assume the "cannot and will not" talk about the relationship with NSA is advance grounding for motions to resist discovery.
A colleague with communications industry experience and I independently came up with the theory in #1, so here's another vote for that particular weaseling.
Not "busted" in the sense of "it's illegal". More of a "busted" in the sense of "caught spanking your monkey at work." No cops involved, just a really, really uncomortable conversation with your boss. And possibly because the laughingstock of the office.
22 -- I'm not clear on why the phone company was taking it upon themselves to police the boss's employees phone habits for him? Did he pay the phone company for that? Or was the phone company exposed to some kind of risk when their customer's employees made unauthorized international porn calls?
Quite of a lot of telecom fraud involves international traffic, as that's the traffic worth stealing. Every telco has a fraud department constantly analyzing traffic for patterns indicative of fraud.
Often it takes the form of a programmable phone system, or PBX that the customer owns on their site being hacked into. Technically, because it's their equipment, they're liable for the calls. But, a hack of this sort can build up a bill ridiculously fast. Even if I shut down a hack only a couple hours in, the charges could still easily be several thousand. If we don't monitor and just wait until the customer gets the bill, you end up with situations where a car dealership gets a bill with 80k in traffic to Africa.
So when a business that doesn't really make intl. calls at all drops a 2 hour call to say, Guyana, it's suspicious. So typically I'd call the business to make sure it was an authorized call. If it wasn't, I'd walk them through possible way's they were being hacked, and block the traffic until they could get their vendor out there to secure their phone system.
Sometimes you call and the traffic is legit. But that time it wasn't a hack or anything, it just happened to be a dude making porn calls.
Another reason for a lawyered-up denial of any sort can be found in the fines the telcos could be liable for. According to the original USA today article, the FCC "can levy fines of up to $130,000 per day per violation, with a cap of $1.325 million per violation. The FCC has no hard definition of 'violation.' In practice, that means a single 'violation' could cover one customer of 1 million."
But even the possibility of one customer equalling one violation means that the potential fines here reach sums that are better written in scientific notation than on checks. Max fines for 10 million violations gives a fine pretty close to the size of the entire US economy. So we're talking potential corporate death penalty.
Anything at all that execs say that limits that possibility, or even kicks it down the road a few years until the appeals are all exhausted is not only what they will say, it is what their duty requires them to say. Truth is pretty much irrelevant.
But isn't the FCC under the control of a certain unitary George W. Bush? I don't see them levying any fines at all, unless this whole thing was a devious plot to nationalize the telecom industry.
"29. There's some country to traverse between a motion to dismiss being filed and a case getting 'shut down.''
I've seen it said that the "State Secrets Privilege," though, is almost never denied. What the actual record is, I don't know. As I mentioned, prior to a few weeks ago, I wasn't very aware we had such a thing in America, even in common law; I suspect I'm not the only person with that level of little awareness.
35. When properly invoked, I'm sure it's often a compelling reason to limit discovery. If you look at the track record this government's had with some of those claims -- the claims made by the SG in Rasul, for example -- it's far from time to count the federal judiciary out. Maybe dismissal in the district court in this one would be a good thing though, to get to the 9th Circuit asap. Now there's a forum the administration has got to be happy to be making these kinds of arguments in.
According to ThinkProgress, he signed that executive order on May 5th. I assume that was right after USA Today called the White House for their reaction to this story they were about run with.
One possibility, based on something I saw from a purported whistleblower: the companies have provided the NSA with access to their equipment, and government is collecting the information directly.
Posted by SomeCallMeTim | Link to this comment | 05-16-06 7:23 PM
Haven't government officials said that they can legally do what they're accused of, and implied that they are doing it? Or am I making this up, I don't remember at all where I saw that and I've been busy lately.
Posted by washerdreyer | Link to this comment | 05-16-06 7:33 PM
LB: I have no idea what the answer to the question is, but you seem to have found the right question. Excellent post.
Posted by Idealist | Link to this comment | 05-16-06 7:35 PM
I bet 1 is right.
Posted by ben wolfson | Link to this comment | 05-16-06 7:40 PM
Non tertium datur here. One and three are, as far as we as citizens are concerned, the same thing.
Posted by Jonathan | Link to this comment | 05-16-06 7:40 PM
#1
That's a definite possibility. What's fishy in that statement is the use of
"Verizon was not asked by NSA to provide, nor did Verizon provide, customer phone records"
Just because something isn't billed to the customer doesn't mean the switch routing the calls doesn't make a record. I've seen this stuff firsthand. I was a supervisor in the fraud department of a telco for a couple years, and have personally pulled call records for court orders numerous times. I left that company just before 9-11, so I never did one in the Patriot Act environment.
But from what I've seen of whistleblower statements and this "denial" of Verizon's, I'm guessing either the telco's are turning over raw switch data, or are allowing the NSA to put data traps in the networks to collect the data firsthand.
Posted by gswift | Link to this comment | 05-16-06 7:43 PM
Couple other things that make me think SCMT is right.
Bush's phrase "The government does not listen to domestic phone calls..." Switch records are not audio files. They're often just large ASCII text files. Not "listening" to your calls does not mean switch records that include your calls aren't being collected and analyzed by NSA's software.
And look at Bell South's phrasing. "We have provided no customer information whatsoever to the NSA," That might be technically true if the NSA has their own data traps. The telco's would technically only be providing access. In their minds they can genuinely say aren't "providing customer information" as the government is the one doing the collecting.
Posted by gswift | Link to this comment | 05-16-06 7:58 PM
1 sounds like a real possibility to me. "We didn't give them the records, we just allowed them to install these little gray boxes on all of our switches..."
If that's the case, I'd expect a follow-up story out of USA Today pretty soon.
Posted by LizardBreath | Link to this comment | 05-16-06 7:59 PM
Kevin Drum suggests the following:
http://www.washingtonmonthly.com/archives/individual/2006_04/008585.php
Posted by Rich | Link to this comment | 05-16-06 8:04 PM
...I'm guessing either the telco's are turning over raw switch data, or are allowing the NSA to put data traps in the networks to collect the data firsthand.
This was the case several years ago with the Carnivore program. It was a sealed box that the FBI wanted to be able to install in data centers and on data backbones to sit there and collect records of internet activity. It required the ISP in question to do nothing but let the folks in when they came to install it; it was data-only, and I believe warrants were required for its use.
My personal theory is that this is the new hybrid of Carnivore/Echelon/Total Information Awareness/whatever you want to call it and that's why the feds have freaked out about any discussion of it and have, since the international calls thing came out months ago, been pushing the 'loose lips sink ships' talking points. They can't seriously believe that the population doesn't assume that there is electronic surveillance of suspects and targets, so there has to be something more to their pants-pooping: that this is the next evolutionary step, the ability to track every kind of electronic communique between any one person and any other, whether phone or data. Maybe it does it in real-time. Maybe it offloads everything to the NSA in real time. Maybe Carnivore was simply shipped over to the NSA to make it harder to learn about, and something about that was illegal, and so that's why they're freaked out. Regardless, I think the government is collecting this data themselves and the phone companies have simply given them access and then washed their hands of it, and the data they're collecting (or capable of collecting) is far more than simply phone #'s.
On the other hand, the former head of Qwest is saying that the NSA asked that the phone companies provide the information to them, so there's an automatic strike against that theory.
Posted by Robust McManlyPants | Link to this comment | 05-16-06 8:07 PM
This is just a PR, perhaps legalistic distinction. It changes the _relevant_ facts of the matter not one bit.
Posted by Jonathan | Link to this comment | 05-16-06 8:19 PM
It is definitely a spin-heavy distinction, but then, how likely are any phone companies, as entities, to test "resistance" in the Viva La test?
Posted by Robust McManlyPants | Link to this comment | 05-16-06 8:23 PM
The kind of analysis you can do is amazing. Because there's always attempts to create new schemes, good fraud software is very flexible. I could have put in a rule that said I was to be paged every time a certain customer called their mother.
One of the most entertaining aspects of that job was busting people calling international porn lines. Once, I called the owner of a business to tell him some long calls to an international "entertainment line" had been made from his business the night before. He told me to hold on, then called some guy into the office and starts cussing him out right there with me still on the line. Full on shouting.
"Make any calls last night? Then WHY THE FUCK is the phone company on the line telling me your phone was used to call a bunch of FUCKING PORN LINES?!"
Good times.
Posted by gswift | Link to this comment | 05-16-06 8:26 PM
Will this Heat-Nets game ever end? I can't take another minute.
Posted by Jonathan | Link to this comment | 05-16-06 8:28 PM
FWIW, Verizon and Bell South are two of the companies that EFF is suing over this issue. So the statement will have been extremely heavily lawyered in the light of the pending litigation. My own bet is that "call data from those records" is the weasel phrase. But we'll find out, eventually.
I also assume the "cannot and will not" talk about the relationship with NSA is advance grounding for motions to resist discovery.
Posted by jim | Link to this comment | 05-16-06 8:29 PM
One of the most entertaining aspects of that job was busting people calling international porn lines.
What, that's illegal?
Posted by ben wolfson | Link to this comment | 05-16-06 8:35 PM
Hours seem to be left in this wretched game.
Posted by Jonathan | Link to this comment | 05-16-06 8:37 PM
A colleague with communications industry experience and I independently came up with the theory in #1, so here's another vote for that particular weaseling.
Posted by mrh | Link to this comment | 05-16-06 8:42 PM
Ok, the audio malfunction has made it more entertaining.
Posted by Jonathan | Link to this comment | 05-16-06 8:42 PM
I'm not sure I'm comfortable discussing this on a blog with a poster named TIA.
Posted by eb | Link to this comment | 05-16-06 8:44 PM
I mean, what's the real story behind the whole "Ask TIA" thing anyway?
Posted by eb | Link to this comment | 05-16-06 8:45 PM
#16
Not "busted" in the sense of "it's illegal". More of a "busted" in the sense of "caught spanking your monkey at work." No cops involved, just a really, really uncomortable conversation with your boss. And possibly because the laughingstock of the office.
Posted by gswift | Link to this comment | 05-16-06 9:02 PM
aargh, becoming the laughingstock, not because
Posted by gswift | Link to this comment | 05-16-06 9:03 PM
22 -- I'm not clear on why the phone company was taking it upon themselves to police the boss's employees phone habits for him? Did he pay the phone company for that? Or was the phone company exposed to some kind of risk when their customer's employees made unauthorized international porn calls?
Posted by The Modesto Kid | Link to this comment | 05-16-06 9:08 PM
Yeah, why would you call the employer at all? What did you care?
Posted by ben wolfson | Link to this comment | 05-16-06 9:10 PM
Ben, I really think you're reading too much into this.
Posted by bitchphd | Link to this comment | 05-16-06 9:12 PM
That doesn't work on me.
Posted by ben wolfson | Link to this comment | 05-16-06 9:16 PM
Quite of a lot of telecom fraud involves international traffic, as that's the traffic worth stealing. Every telco has a fraud department constantly analyzing traffic for patterns indicative of fraud.
Often it takes the form of a programmable phone system, or PBX that the customer owns on their site being hacked into. Technically, because it's their equipment, they're liable for the calls. But, a hack of this sort can build up a bill ridiculously fast. Even if I shut down a hack only a couple hours in, the charges could still easily be several thousand. If we don't monitor and just wait until the customer gets the bill, you end up with situations where a car dealership gets a bill with 80k in traffic to Africa.
So when a business that doesn't really make intl. calls at all drops a 2 hour call to say, Guyana, it's suspicious. So typically I'd call the business to make sure it was an authorized call. If it wasn't, I'd walk them through possible way's they were being hacked, and block the traffic until they could get their vendor out there to secure their phone system.
Sometimes you call and the traffic is legit. But that time it wasn't a hack or anything, it just happened to be a dude making porn calls.
Posted by gswift | Link to this comment | 05-16-06 9:22 PM
"...or are allowing the NSA to put data traps in the networks to collect the data firsthand."
We already know this is true from Risen. Not a mystery. Not to mention Hepting vs. AT&T. Which is being shut down.
Posted by Gary Farber | Link to this comment | 05-16-06 10:18 PM
You know what's peculiar? The NBA is starting to look like college basketball.
Posted by eb | Link to this comment | 05-16-06 11:27 PM
Another reason for a lawyered-up denial of any sort can be found in the fines the telcos could be liable for. According to the original USA today article, the FCC "can levy fines of up to $130,000 per day per violation, with a cap of $1.325 million per violation. The FCC has no hard definition of 'violation.' In practice, that means a single 'violation' could cover one customer of 1 million."
But even the possibility of one customer equalling one violation means that the potential fines here reach sums that are better written in scientific notation than on checks. Max fines for 10 million violations gives a fine pretty close to the size of the entire US economy. So we're talking potential corporate death penalty.
Anything at all that execs say that limits that possibility, or even kicks it down the road a few years until the appeals are all exhausted is not only what they will say, it is what their duty requires them to say. Truth is pretty much irrelevant.
Posted by Doug | Link to this comment | 05-17-06 3:58 AM
sums that are better written in scientific notation than on checks
Nice!
Posted by Jackmormon | Link to this comment | 05-17-06 6:28 AM
But isn't the FCC under the control of a certain unitary George W. Bush? I don't see them levying any fines at all, unless this whole thing was a devious plot to nationalize the telecom industry.
Posted by Standpipe Bridgeplate | Link to this comment | 05-17-06 6:44 AM
29. There's some country to traverse between a motion to dismiss being filed and a case getting 'shut down.'
Posted by CharleyCarp | Link to this comment | 05-17-06 6:52 AM
"29. There's some country to traverse between a motion to dismiss being filed and a case getting 'shut down.''
I've seen it said that the "State Secrets Privilege," though, is almost never denied. What the actual record is, I don't know. As I mentioned, prior to a few weeks ago, I wasn't very aware we had such a thing in America, even in common law; I suspect I'm not the only person with that level of little awareness.
Posted by Gary Farber | Link to this comment | 05-17-06 7:58 AM
#35
No doubt. When I first heard that I thought someone was making it up. Surely that kind of shit is beyond the pale in this country, right?
What an educational time this has been.
Posted by gswift | Link to this comment | 05-17-06 8:20 AM
35. When properly invoked, I'm sure it's often a compelling reason to limit discovery. If you look at the track record this government's had with some of those claims -- the claims made by the SG in Rasul, for example -- it's far from time to count the federal judiciary out. Maybe dismissal in the district court in this one would be a good thing though, to get to the 9th Circuit asap. Now there's a forum the administration has got to be happy to be making these kinds of arguments in.
Posted by CharleyCarp | Link to this comment | 05-17-06 8:58 AM
Here's another possible explanation: Bush apparently signed an Executive Order allowing public companie to lie about matters related to national security.
Posted by Chopper | Link to this comment | 05-17-06 9:43 AM
I wish I could type.
Posted by Chopper | Link to this comment | 05-17-06 9:43 AM
According to ThinkProgress, he signed that executive order on May 5th. I assume that was right after USA Today called the White House for their reaction to this story they were about run with.
That doesn't sit right with me. Not at all.
Posted by Jackmormon | Link to this comment | 05-17-06 9:51 AM
Thanks, Chopper. Noted here.
Posted by Gary Farber | Link to this comment | 05-17-06 10:26 AM