The United States of AT&T

by emptywheel

Back in June, the Bush Administration invited one of AT&T's key lobbyists, Ed Gillespie, to serve as White House counselor. A few weeks after that, BushCo expanded AT&T's resident lobbyist's role to include most of Karl Rove's portfolio. Just days after Gillespie took over that role, the DOJ made an unusual intervention into the FCC's request for comments on Net Neutrality, weighing against Net Neutrality.

Well today, one of AT&T's former key attorneys, Peter Keisler, just took over the Department of Justice.

In the late 1990s, Keisler represented AT&T before SCOTUS in a case divvying up authority over how the 1996 Telecom Act would be implemented. He represented AT&T and other telecom companies fighting local ordinances limiting the acts of telecommuncation companies.

In early 2001, Keisler helped AT&T win the dismissal of a lawsuit that charged AT&T had illegally shared private information (a customer's unlisted phone number) with AT&T's credit division.The Second Circuit ruled that transfer of such personal information does not incur damages, and therefore private citizens cannot sue.

In June 2006, Keisler was one of a number of government lawyers arguing that New Jersey had no legal authority to subpoena documents relating to AT&T's and other telecomm companies' participation in the warrantless wiretapping program. Also in June 2006, Keisler invoked state secrets in Hepting v. AT&T, an attempt to scuttle the citizen lawsuits on the warrantless wiretap program.

In other words, both in and out of government, Keisler has represented AT&T's interests masterfully.

Which makes it rather disconcerting that the AG has the authority to authorize telecomm companies to cooperate in government spying.

(ii) Notwithstanding any other law, providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with—

(A) a court order directing such assistance signed by the authorizing judge, or

(B) a certification in writing by a person specified in section 2518 (7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required,

Basically, Bush just gave AT&T the ability to have its long-time lawyer give it legal authority to collaborate with the government to spy on citizens.

And in case you're worried that AT&T is stuck with no good legal representation, having lost Keisler, rest assured. You see, former Associate White House Counsel Brad Berenson (who also happens to be Kyle Sampson and Susan Ralston's lawyer) has taken over for Keisler and is working on the AT&T case, among other things.

Comments

[mk]

So cozy it is. Such a small world.

[Terminus Est]

OK...what the hell? EVERY time I come to this site anymore I get an audio or audio/video "addon" from media-hhmi.org going on about genetics and animal size/organ size. WTF? I have nothing against such a lecture, being a molecular biologist myself, but I must say that it has absolutely diddle to do with this website or why I come here.

What gives?

[Dismayed]

Time to change the signs at the borders--

"Welcome to the United States of Corporate America"

[Rayne]

terminus est -- you may have been infected by a hijacker, from the sounds of it. I'm not experiencing that.

[zhiv]

Gillespie!

Mysterious surprise appointment of new Acting AG, no one can figure out why...

Thanks as always ew for connecting the dots.

Is anybody else ever going to take a look at Big Ed's growing track record?

[mighty mouse]

Terminus Est--I get it as well--a message that "this site" (aka TNH) wants to add on Apple Quick Time Player. Every time I come to or refresh TNH I get this quacking kind of ding and yellow banner telling me that this site wants to add on Apple Quick Time Player, ad infinitum. Does anybody know if there's a fix?

[earlofhuntingdon]

I use Firefox and never have the Apple Quicktime request or other problems. I would suspect a hijack, virus, etc.

[bmaz]

I think it might be related to this post by emptypockets:
http://thenexthurrah.typepad.com/the_next_hurrah/2007/09/go-learn-someth.html

[emptywheel]

There was a comedy channel embed that may have been invoking the quicktime request. I've gotten rid of it. Let me know if it's better.

[mighty mouse]

bmaz and emptywheel--I've still got it (the add on Apple Quicktime) and it did start after the post by emptypockets. I hit the little "x" every time and it goes away and then pops and quacks when I visit the site again. I should add that I am a technological dinosaur, but I don't see any option for what to do if you don't want Apple Quicktime. Thanks for your help and thanks to terminus est--I thought this was just something else I got wrong. Sigh....

[JJ]

I'm not up on HTML but I just scanned the source for the front page and the post from emptypockets includes a section to load the QT plugin, if required. Whenever the post gets archived, it will stop.

[seamus]

I've never had a Quicktime, or any AV request at TNH. Powerbook, OS 10.4.1.0, Safari 2.0.4

[sojourner]

Back on topic, I find it amazing that we are even talking about AT&T! This company was broken up after the anti-trust stuff back in (what?) the 1960s? 70s? And now, just like a zombie, it has come back from the dead with all its pieces put back in place!

Just today, I was attempting to find a phone number to call AT&T customer service. I found all kinds of information that would tell me stuff I did not want to know, but I never could find a phone number to talk to a real human being (who speaks ENGLISH)!

Bush is still a dipshit, Cheney is still a dick, and AT&T is back to taking over the world...

[JohnJ]

I thought there were several opinions that the telcoms didn't need immunization if they were working at the governments orders??

If my memory is correct about that; what the hell are they up to that they need all this legal help and protections? Is this about previous and future crimes in the upcoming frequency auction? To continue that speculation; old telcom money has to be pissed that Google wants into the game. This thing could make Halibuton et el look like street hustlers in the long run.

In short, if I'm right about the first part; we may not be thinking big enough.

[emptywheel]

JohnJ

Oh, I'm sure it's about that too. With Gillespie in WH, perhaps a wider strategy of allying closely with the telecoms.

[RickG]

In the 1990s, ATT would have been fighting against the RBOCs over the telecomm act of 1996 which basically doomed the long distance companies. ATT then was not the renamed SBC which uses the ATT name today.

[joejoejoe]

I don't know how true this is but I read a short Wired Magazine piece that basically said Japan's giant teleco NTT is an absolutely kick ass company and our giant teleco's are evil wankers. Wired was talking about technology and service not surveillance.

If anyone familiar with NTT Japan can give a brief comparison to U.S. telecos in a comment I would appreciate it.

[pdaly]

Not everything from Ma Bell is growing stronger under Bush.
QWEST's CEO Joseph Naccio, for one, in July 2007 was sentenced to 6 years in prison for 19 counts of outing a spy--I mean for 19 counts of insider trading. (Silly me. Outing a spy is only 5 years!)

Not sure if Qwest, unlike the other telecoms, tried to resist Bush's warrentless spying on Americans, but it sure would make a good story if true.

[pdaly]

or the sentence for outting a spy (and lying about) is less than 3 years if a your year is defined as 12 mos (sorry).

[emptywheel]

pdaly

In the original USA Today story on the massive cooperation on datamining, Qwest was indeed the one telecom that USA Today reported as not cooperating. Since then, some have claimed USA Today was wrong. But Qwest probably didn't cooperate.

[Jane S.]

Emptywheel enthusiasts:

I just wanted to post here that I traveled to Lexington to see Jim Comey and two law profs (Rodney Smolla & Kathleen Sullivan) discuss Plame and the first amendment at Washington & Lee Law School. Lexington is lovely. The panel was pretty broad-stroke, historical. There wasn't an opportunity to ask really detailed questions. I did get to meet Comey and he is very charming and very tall.

If anyone is interested, C-Span was there filming but I don't know when they will broadcast it.

[jonno]

AT&T is the first "sponsor" whose ad you see at the top of the Lehrer NewsHour on PBS. You think Jim would report anything that'd really piss off his enabler? Another reason I swore off all tv "news"

[pdaly]

Interesting, EW.

The fact that Nacchio didn't receive a get-out-of-jail-free card supports your contention.

And if Qwest had cooperated with Bush, I doubt Joe Nacchio can rat on the other telecoms in exchange for leniency now that AT&T's former attorney took over the DOJ.

[OrionATL]

re: the computer problems.

- i use windows

-- i went to the site emptypockets' brought to my attention.

no problems.

-- i went to the two sites mentioned by one of the commenters to emptypockets' post.

no problems.

but

i use a "spyware" (actually spyware + much more) program called "spybot search and destroy".

it is superb: all the more because it's free (unless you have a conscience).

written by an irishman if i'm not mistaken.

it provides you with control over what are called BHO's -"browser helper objects", and lots more potential webworld nuisances.

just be careful you end up at the authentic site and not a bogus one.

[MarkH]

Bush & Co rarely act frivolously, so I'd guess they want a great deal of telcom control for the forseeable future. What do they want a tight relationship with AT&T for?

There are many possibilities, but one that comes to mind is that in the future, presumably Dem, administration there will be talk...lots of talk about what to do about George. They would want to know a lot about that in order to bribe, pay off, effect changes to get the results they desire.

Perhaps the biggest issue which *might* arise in the next administration is a 9/11 commission to discover whether W was involved beyond reading a children's book. They would want to know anything and everything such a commission might come up with.

BTW, EW, have you considered whether you'd like to be involved with such a commission. You're really excellent with a timeline and an AK-47, er computer.

If the Bush mafia are to extend their influence and try to regain the mantle at some future time, then any tremendous source of information such as telcoms would be of great use. With luck they aren't going to have any direct sources within government for some years.

[pdaly]

MarkH,

Are not both Bush, Sr. and Bush Junior entitled, as perks of being past presidents, to an ongoing copy of the Presidential Daily Brief or some watered down version of it?

Maybe, too, there are other top secret channels that ex-presidents tap into--like eavesdropping results from NSA outsourced to NeoCon friendly private business?

[JohnJ]

There's the Quid pro quo; Chimpy and the Big Dick get to keep an eye on those who are after them and AT&T gets whatever spectrum it wants for whatever it wants pay.

Don't underestimate the long term value to these new frequencies. With a fair auction, someone like Google could undo this choke-hold the wireless companies have on the cell market (I just pick Google because they are an outsider, not for some innate trust I have of them). The current system here in the US is almost pure theft since cell service costs the phone companies a fraction of what it costs for land-lines. We are talking trillions. Some of these available frequencies are the soon-to-be old TV frequencies which have an advantage....they go through buildings. If someone dominates the spectrum they could dominate the next generation of cell phones, or at least get a royalty for all use and do nothing else.

If they can fix the auctions simply by seeing others' bids...but that would take the cooperation of someone who has access to other companies phone networks. I wonder who might have that kind of access to the communications from all the other companies, and then be able to provide legal cover if they get caught???

[katie Jensen]

If it were not for the likes of EW and my fav. blogs I would be totally ignorant about how long the fingers of this administration are and how far they wrap around our necks and into our back pockets. Somedays I wonder if ignorance is bliss, but I cannot stop coming back for more. What good can I do with this knowledge??

[Mark G. Levey]

Need to discuss CALEA as well as FISA in connection with Telco liability

Two key pieces of legislation need to be taken into consideration to understand this issue. In a way, they serve as counterpoints in understanding how the phone companies (not just AT&T) are liable for damages wrought by Bush-Cheney's illegal wiretapping, and how the Telcos could have and should have served as a firewall to the warrantless surveillance program.

1978. The Foreign Intelligence Surveillance Act (FISA) of 1978 prescribes procedures for the physical and electronic surveillance and collection of "foreign intelligence information". The primary enforcement mechanism of the FISA law is criminal and civil penalties -- that may be imposed on either/or both Telco executives or government officials -- for allowing phone company facilities to be used to wiretap without a) a FISA or criminal warrant; or b) a letter from the AG stating that a lawful exception applies.

1994. The Communications Assistance for Law Enforcement Act (CALEA) is a United States wiretapping law passed in 1994 (Pub. L. No. 103-414, 108 Stat. 4279). In its own words, the purpose of CALEA is:

To amend title 18, United States Code, to make clear a telecommunications carrier's duty to cooperate in the interception of communications for Law Enforcement purposes, and for other purposes.

In effect, CALEA mandated that the Telcos and more recently the ISPs install surveillance equipment at key switching stations that allows the federal government to record electronic communications. There are two basic types of surveillance equipment in place, diverters that funnel data directly to the NSA (this is type observed in the AT&T case), and data storage systems that separate out data streams into discrete message packets and then store these should a federal agency produce a warrant or order demanding a particular individual's call records be turned over.

For obvious reasons, there is tremendous tension between FISA and the first type of CALEA compliant equipment and procedures that simply funnel your call to NSA contractors rather than separate and store messages.

The Telcos would prefer that they now be retroactively exempted from liability, and by installing diverters rather than separators some have sought to evade the intent of FISA, which was to hold the Telcos jointly liable for cooperating with warrantless searches.

CALEA, as well as FISA, need to amended to clarify the proper role the Telcos should be expected to play in policing federal demands for wiretaps.

[bmaz]

Mark G. Levey - I understand your statement regarding consideration of CALEA in relation to FISA. I still maintain that as long as there is a warrant valid on it's face or a properly certified AG letter that appears valid on it's face, the telcos either have no liability or, alternatively, are entitled to indemnification by the government for any resultant liability and any costs and expenses incurred by the telcos in defending themselves. There is massive liability here, but I just don't believe the telcos ultimately bear that liability. The attempts ats immunity are all about shielding the Bush Administration. Telco immunity is just another shell game fraud being sold like snake oil to the public so that BushCo continues to avoid accountability.

[pdaly]

Somehow this off topic article seems tangentially relevant to Telco's and switching stations.

Prof. Lene Hau at Harvard has slowed down the speed of light to zero. And this was back in 2001. In the intervening years, she has learned how to revive it in a different space (without direct connection). Who knows how useful this has become to the government putting its paws into the fiberoptic backbone of the communications grid nationally and worldwide.

http://www.hno.harvard.edu/gazette/2001/01.24/01-stoplight.html

[JohnJ]

bmaz: That was what I remembered (I thought it was you who gave that opinion). As long as the AG signs a statement that he believes the actions are legal, they get a pass. I would assume that that put the burden on the AG to whether it was actually legal or not.

This brings me back to the idea that they are looking for past and future absolutions for crimes which can be "accidentally" covered by vague language in the bill.

[Mary]

Jane S - thanks for the input. Lexington VA is lovely and has horsepark. Lexington KY though, is God's country, heaven on earth and has The Horsepark. *g*

bmaz - the "safeharbor" is why I found Comey's testimony on what he was being asked to sign off on so interesting - it seems to rule out that they were providing in THAT particular doc at least, a safeharbor AG letter.

I also have to say - safeharbor or not, the intent of the statutory reference to AG letter is pretty clearly to allow for the AG to do the FISA allowed foreign to foreign or 3 day emergency taps that don't require a warrant but with something for the telecom to hang their hat on. Warrant aside, I think there's just no way that safeharbor could be claimed in good faith if there was massive data collection of US citizens involved in what the AG presented. And I would also think that if the other telecoms had notice of the QWEST position, it would make it harder to fall under the safeharbor.

All things being equal, the safeharbor argument is much better and easier for the telecoms to make (if they had the right documentation -I'm not sure if an Exec Order is included in the two safe harbor options)but at some point, bad faith vitiates. Maybe there wasn't a massive enough US citizen involvement initially for that to be an issue. Maybe there was never a true bad faith situation during the initial steps (as a hypothesis on the hypothetical programs).

However, when you reach a point where the program went public and the President and AG have doggedly denied to Congress and the public that they are doing datamining etc. and claimed they were only accessing "al-Qaeda calling" information, the telecoms would know the AG is lying and or is deliberately covering up what he is doing to Congress. At some point, it seems to me there has to be something in the nature of a bad faith/fraud vitiation. But that's all very speculative and fact/law dependent and jmo anyway.

[Mary]

Leahy ought to consider having Naccio subpoenaed to testify under grant of immunity behind closed doors. He enjoy his day out enough to have few things to say.

[bmaz]

JohnJ - From a general perspective, that is how I have read it; and still do. This is high stakes litigation, complex, and an inventive plaintiff's attorney can find several different avenues, or claims, with which to pursue his case. As a general rule though, I believe the analysis I have given is correct. I have intentionally put it out in a couple of different places to see if it holds up. To date, I have not seen an effective contravention. It should be pointed out that when I say indemnification, it doesn't mean that there is no chance ever of a judgment being rendered against a telcom; simply that if any judgment were to entered (and many claims will be dismissed; but as to any that make it through toa judgment) the government would have to reimburse, or simply pay, any amounts the telcos would be liable for. So it is not that there couldn't be giant liability awards, it is simply that the telcos are not in any danger of being buried by them. The immunity desire is being sold to the public as necessary for the telcos. It is not. The Bush administration does not want to have to pay for their criminal actions, and they want immunity so that there will be no civil suits where their malevolent actions and conduct can be exposed. So the real import, if any, of what I am saying is that the discussion on immunity should be honest. There is liability out there, but it is all about the Bush Administration; not that ATT is going to go belly up. No one should let the Administration get away with arguing otherwise.

[bmaz]

Mary - There are differences between a safe harbor and an indemnification analysis, but that aside, my general analysis assumes that the telcom obtained appropriate acknowledgements from the government on the activity they participated in knowingly. I have had the pleasure (so to speak) of doing business with attorneys for telcoms before (ie I was making a claim on them) and they are pretty good on getting authorization letters from the government; and this was long before Bush and on judicially authorized warrants. I find it hard to believe that the General Counsels for the telcos don't have innoculating documents in their possession; probably coveringt several bases of exposure. Telcos are not good guys, but they are not stupid; and, although we are playing at a lot higher level than we were previously, the concepts for protecting themselves are not that fundamentally different. Hey, I don't think any of these asshats, whether comms or governmental deserve immunity no matter how you look at it; I just think it is a false flag for it to be sold to the public under the guise that their local phone company may not be there if they don't get immunity. A. They don't need immunity; B. Even if they do, they don't deserve it. Screw em and hold them and the administration accountable. I am not asking for much..... heh heh.

[JohnJ]

Oh well, that shoots my theory down. I would still look for any unexplained additions slipped into any legislation.

Aww I have to take off my tin hat now. I'll save it for later.

At least we know our economic policies are working; my job's going to China Friday without me.

[Bewildered]

Seriously? "W was involved in 9-11?" No, you people don't need any psychological treatment...afterall, THE SKY IS FALLING! THE SKY IS FALLING!

Conspiracy nutbags...

[pdaly]

I just saw a rebroadcast of the White House Press Room briefing today on CSPAN.
I think I like the new WH Press Secretary Dana Perino. I hadn't seen her before, but not only is she perky, smirky and makes me think she is lying to me, but she also tells the truth just before she slaps on the lie. It is so refreshing to hear the truth come from the WH.
Today she was addressing the need for the false flag (thanks, bmaz) need for the telcos to get immunity from prosecution.
She said something like the phone companies helped us after 9-11 (long pause) "allegedly" and etc., etc., perky smirky.

[Sky Packages]

Not just an economic issue. Costs are comparable to other forms of entertainment they pay for. Just isn’ t a priority for these people. Need to be relevant services that make digital inclusion a desirable objective. No point in having a connection if can’ t afford direct charges for content & service. BBC’ s project for archives online. CC license. Can re- shape it. People pay for Sky, can offer alternative to Sky of streamed sports broadcasts.