06 April, 2006

Can you trust your ISP?

Which Internet Service providers are passing along information to the NSA? There's no way to be sure, but CNET asked the question of several and got the following official answers:

We asked them: "Have you turned over information or opened up your networks to the NSA without being compelled by law?"

Company Response
Adelphia Communications Declined comment
AOL Time Warner No [1]
AT&T Declined comment
BellSouth Communications No
Cable & Wireless* No response
Cablevision Systems No
CenturyTel No
Charter Communications No [1]
Cingular Wireless No [2]
Citizens Communications No response
Cogent Communications* No [1]
Comcast No
Cox Communications No
EarthLink No
Global Crossing* Inconclusive
Google Declined comment
Level 3* No response
Microsoft No [3]
NTT Communications* Inconclusive [4]
Qwest Communications No [2]
SAVVIS Communications* No response
Sprint Nextel No [2]
T-Mobile USA No [2]
United Online No response
Verizon Communications Inconclusive [5]
XO Communications* No [1]
Yahoo Declined comment

* = Not a company contacted by Rep. John Conyers.
[1] The answer did not explicitly address NSA but said that compliance happens only if required by law.
[2] Provided by a source with knowledge of what this company is telling Conyers. In the case of Sprint Nextel, the source was familiar with Nextel's operations.
[3] As part of an answer to a closely related question for a different survey.
[4] The response was "NTT Communications respects the privacy rights of our customers and complies fully with law enforcement requests as permitted and required by law."
[5] The response was "Verizon complies with applicable laws and does not comment on law enforcement or national security matters."

Note--this is only responding to voluntary compliance. It says nothing about requests made under the provisions of law and/or executive order.

Meanwhile, the Electronic Frontier Foundation (EFF) has sued AT&T and provided evidence that the telecom has provided its customer records to the NSA:

EFF claims that it has a sworn statement by Mark Klein, a retired AT&T telecommunications technician -- and several internal AT&T documents -- that show a "dragnet surveillance" has been put into place to facilitate the NSA's controversial surveillance scheme. (Here's our survey of telecom companies regarding NSA cooperation.)

Alas, we likely won't know details until the judge decides to release them.

Even if the documents prove everything that EFF claims, it's not a slam dunk for the group.

The state secrets privilege, outlined by the Supreme Court in a 1953 case, permits the government to derail a lawsuit that might otherwise lead to the disclosure of military secrets.

In 1998, the 9th Circuit Court of Appeals elaborated on the state secret privilege in a case where former workers at the Air Force's classified Groom Lake, Nev., facility alleged hazardous waste violations. When requested by the workers' lawyers to turn over information, the Air Force refused.

The 9th Circuit upheld a summary judgment on behalf of the Air Force, saying that once the state secrets "privilege is properly invoked and the court is satisfied as to the danger of divulging state secrets, the privilege is absolute" and the case will generally be dismissed.

That "absolute privilege" case is still good law and is binding on the judge that will hear EFF's case.

Privacy? We don' need no stinkin' privacy!

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