We mentioned in our post about the newly declassified FISC ruling, explaining the secret interpretation
of Section 215 of the Patriot Act that allows for bulk data collection of all phone records, that the FISC notes (in its own support) that telcos like Verizon and AT&T have chosen to never challenge the bulk collection orders:
To date, no holder of records who has received an Order to produce bulk telephony metadata has challenged the legality of such an Order. Indeed, no recipient of any Section 215 Order has challenged the legality of such an Order, despite the explicit statutory mechanism for doing so.
This is hardly a surprise. We'd already pointed out that, while the internet companies had been very vocal about the NSA surveillance efforts, there had been a deafening silence
from the likes of Verizon and AT&T. In fact, it later came out that the telcos actually volunteered
to share this information, and when the tech companies reached out to get them to sign onto a letter asking the government to be more transparent, AT&T and Verizon refused to sign on
Given all of this, it's hard to imagine any worse timing than the very same day that the FISC ruling was unclassified for a Verizon exec to finally speak out on this. Specifically Verizon Enterprise Solutions president John Stratton decided to talk about this... by mocking Google, Yahoo and Microsoft for "grandstanding"
on this issue, and to pretend that Verizon had to just shut up and hand over the records for the sake of national security.
"I appreciate that the consumer-centric IT firms that you referenced [Yahoo, Google, Microsoft] that it's important to grandstand a bit, and waive their arms and protest loudly so as not to offend the sensibility of their customers," Stratton said.
"This is a more important issue than that which is generated in a press release. This is a matter of national security."
Stratton said the larger issue that failed to be addressed in the actions of the companies is of keeping security and liberty in balance.
"There is another question that needs to be kept in the balance, which is a question of civil liberty and the rights of the individual citizen in the context of that broader set of protections that the government seeks to create in its society."
Of course, the internet companies have done more than issue press releases. Google, Yahoo and Microsoft are all currently suing the government
concerning the gag order on Section 702 Orders. Yahoo fought back
on a FISA Court order in 2008. Google is still in the process of fighting back
against questionable National Security Letters, while Twitter, which turned down
a request to be a part of the PRISM program has also fought hard
against a so-called 2703(d) letter for info on its users.
And, yet, when faced with a much broader
demand from the government, seeking info on every single phone call
, neither AT&T nor Verizon lifted a finger in protest. And, contrary to Stratton's claims, as the FISC ruling makes clear, both AT&T and Verizon had a clear legal path to appeal to make sure that the privacy of their customers was being protected. But they didn't do that. And now Verizon wants to mock the internet companies? Stratton just couldn't help himself it seems:
Stratton said that as a company, Verizon follows the law, and those laws are set by governments.
"The laws are not set by Verizon, they are set by the governments in which we operate. I think its important for us to recognise that we participate in debate, as citizens, but as a company I have obligations that I am going to follow."
Again, one of those "obligations" is to protect the privacy of your customers, and as the court notes, Section 215 allows Verizon to challenge these orders and make sure they are appropriate. Verizon never did so
. I agree that if it had challenged and then lost in court, Verizon would have had little recourse other than to hand over the info, but the facts remain that Verizon didn't even take that basic step. And now it mocks those who have, pretending that all they've done is send out press releases, when the evidence shows they've done what Verizon has refused to do: go to court, in an effort to protect the privacy of their users.
Then there's this laugher:
"This is not a question that will be answered by a telecom executive, this is not a question that will be answered by an IT executive. This is a question that must be answered by societies themselves.
"I believe this is a bigger issue, and press releases and fizzy statements don't get at the issue; it needs to be solved by society."
And just how is "society" supposed to answer that question when the whole program is kept secret from the American public? And part of that secrecy is because Verizon failed to do what it is allowed to do by law, and challenge the Section 215 bulk data collection orders?
Then he goes back to the bullshit talking points of the NSA:
"Verizon, like every communications company on the planet, operates in many jurisdictions, and our obligation in operating in those jurisdictions is to comply with the law in those places where we do business. So whether that be in the United States, in the United Kingdom, in Japan, whoever it is that we have a licence with to operate our business, we have these obligations," he said.
"As it relates to the NSA — as has been discussed, the information was conveyed under a very rigorous process that had oversight by all three branches of the United States government."
No, it was not a vigorous process, in large part because of Verizon's own failure to challenge the Section 215 orders it got. In that case, at least there would have been an adversarial hearing. There hasn't been one because Verizon failed to do so. There's a difference between just "complying with the law" and "rolling over and submitting" when the government comes to you with a bogus request, which even explains exactly how to challenge it in court. Verizon chose to roll over.
Already, we've seen that the vaunted "oversight by all three branches" is simply not true
. It's been revealed that Congress was not aware of large parts of the program, in part because some NSA defenders purposely kept their colleagues in the dark
. The judicial system -- the FISC -- has admitted that it relies on
what the NSA tells it, in part because of the lack of any adversary in court. And, once again, Verizon could have been that adversary
, but instead, made the conscious decision not to do so.
"Verizon is not unique in the world in terms of its need to comply with the laws of the countries in which it operates. These requirements that are put upon it by governments, duly elected governments, are something that we are very careful about, very thoughtful about, and we work vigorously to protect the privacy of our customers data."
A company that is "very careful" and "very thoughtful" and which works "vigorously to protect the privacy or our customer data" does not first volunteer to hand it over to the government, and then when given a broad order demanding every phone record
choose to ignore the stated process by which it can challenge that order.
Perhaps this is why Verizon has been so quiet throughout all of this. When one of its execs opens his mouth, it just makes the company look worse.