Verizon Says It Has A First Amendment Right To Illegally Give Your Call Records To The Government

from the that's-an-interesting-way-to-look-at-things dept

Mon, May 7th 2007 8:22am — Carlo Longino

The nation's biggest telcos are working hard to make the lawsuits against them for passing customer call records and other info to the government as part of its program of warrantless wiretaps disappear. AT&T's argument that it was just following government orders didn't wash with a judge, and now Verizon is claiming that its passing of information to the government is protected by the First Amendment. Yes, you read that correctly: it says the Electronic Communications Privacy Act is unconstitutional, and the information it passed to the government -- in apparent violation of it, and to comply with the sort of warrantless surveillance the ECPA was designed to prevent -- is constitutionally protected free speech. This seems tenuous at best, but it fits with Verizon's MO. The company always tries to whitewash its customer data leaks by filing lawsuits and trying to shift the blame onto pretexters and information brokers, and making the problem appear to be solely these people's activities, rather than its own inability to protect customer data. Likewise in this case, it contends that it's done nothing wrong, and that the ECPA makes the mistake of trying to prevent free speech, rather than putting restrictions on the government's ability to ask for the information. Of course, those restrictions exist (in the form of having to get a warrant), but didn't really work so well here. Verizon's complicity seems pretty obvious and its free-speech claims look like little more than a hail-mary attempt to shirk liability for disclosing the customer information. That may not be necessary, though, if the Bush administration's attempts to get Congress to pass a law giving the telcos immunity from these sorts of lawsuits are successful.

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Anonymous Coward, 7 May 2007 @ 8:49am

First!!!!!. WTG Bush, another failed and misleading bunch of crap. Who would have guessed? I dont blame Verizon for passing the buck. All big business does it, especially since he made office.
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Anonymous Jerk, 7 May 2007 @ 9:22am

Verizon blows
Verizon better watch their step, there are already thousands of Vonage users that don't like them, as well as (I would estimate, possibly) millions of former Verizon and VZW customers that are dis-satisfied with the service. How much more of the population are they attempting to anger?
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Rick Clinch, 7 May 2007 @ 9:39am

How much more would they be hated if we found out that they were providing a safe haven for the bad guys and did nothing about it? Are we willing to lose a few thousand civilians and billions in infrastructure and buildings/equipment as a price for ultimate freedom? I am a bit of a fence sitter on this one. I hate giving up freedom, but if it only means that people know that I call my mom on mother's day I can deal with that.
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Ron (profile), 7 May 2007 @ 10:06am

Sounds Like ...
... the Nuremburg Defense: "I know what I did was illegal but I was ordered to do it, so I am blameless". And, on top of that "I have a Consitutional protection allowing me to do an illegal act". You know that if any of us did the same thing we would be smacked down so fast it would make our heads spin.
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Paul, 7 May 2007 @ 10:06am

Re:
"Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety." - Benjamin Franklin (well, most likely, a little controversy exists around the original author)
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Dave, 7 May 2007 @ 10:07am

Re: Verizon blows
Just thousands? I thought all Vonage users hated them (at least all who can read). We might have to give up our cheap dependable service, just because Vonage was sucessful with it's business model.
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Anonymous Coward, 7 May 2007 @ 10:10am

Re:
Well then, you better hope that your mom never gets a number that was once used by a known or suspected terrorist. Because then everyone that calls her will be flagged as possibly colluding with terrorists. They will then begin going through the records of everyone else that they call.
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teknosapien, 7 May 2007 @ 10:10am

so wait
The First amendment Nullifies the Fourth amendment
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
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Wyndle, 7 May 2007 @ 10:26am

What's that?
How in the bloody blue blazes does the First Ammendment have anything to do with giving away information to the government? I don't even see how they are trying to stand on this non-existant legal leg.

"Bailif, whack his pee-pee." - comedy audio skit (don't remember who though)
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Ron (profile), 7 May 2007 @ 10:42am

Baillif
From Cheech and Chong. Skit about Blind Mellon Chitlin'.
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Matt, 7 May 2007 @ 10:47am

Any other sources?
All I've been able to find in a quick search is the Wired Blog entry...

This is a really big deal if Verizon really doesn't beleive that their customer's phone calls are not private. So much so, that I don't want to run off with a bunch of letters to my congresscritters, local news outlets, etc... on just one report.

This seems to be a crackpot story, or (tinfoil_hat _mode) someone has done a really good job in squashing it! (/tinfoil)
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reed, 7 May 2007 @ 10:59am

Uhh-huh
"How much more would they be hated if we found out that they were providing a safe haven for the bad guys and did nothing about it?"

No doubt! We provide roads which criminals use everyday to kidnap, rob, murder, and many other illegal activities. If we just had road blocks all over every major city we could turn this tide and fight back against all those criminals.

The American dollar is also used for millions of illegal transactions every single day (Think of all those drug dealers). If we just stopped everyone on foot and checked their financial history to make sure they don't have money they shouldn't we could ferret out all these drug dealers.

Computers are used by mobsters and con artists everyday to rip off the American people and possibly fund terrorism. If we only had a license for computer use we could regulate it and keep all these bad people from using computers.

I could on with this logic and if we followed it we could all enjoy our new found governmental protection!

"Are we willing to lose a few thousand civilians and billions in infrastructure and buildings/equipment as a price for ultimate freedom?"

Exactly, freedom is just a airy concept as our President has made very clear. Freedom must be carefully balanced with spying, investigations, and the governments ultimate authority to take your freedom away in order to protect all of us.

"I am a bit of a fence sitter on this one. "

Sounds like you enjoy sitting on a fence. Just remember the don't ask don't tell policy, just another way to protect your freedom

"I hate giving up freedom, but if it only means that people know that I call my mom on mother's day I can deal with that."

If you have nothing to hide, why not give up all your freedom. You apparently don't need it! Just head down to your local hospital and get the government approved tracking chip inserted into your brain so we can be sure your really not a terrorist in disguise.
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PTTG, 7 May 2007 @ 11:00am

Bye bye verison
I use a version cell phone now, but I am going to cancel my service, If this is the way they work.
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Shred303, 7 May 2007 @ 11:04am

Ok how about I obtain the social security number, driver's liciense, and address of Verizon's CEO Ivan Seidenberg and publish that to my blog. I can do that, It's a free speech, it's protected under the first amendment. While I'm at it I'll also post the security code number for his front gate. Free speach man. And how about all the phone numbers of everyone he's called. Maybe that would be something his wife might be interested too.
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guy from the cell world, 7 May 2007 @ 11:11am

hey
1: When you sign a contract with any cell company, the information you use, including but not limited to, phone calls, numbers to which you call or receive calls from, is the property of that cell company. The only thing you pay for is the service not the security of your information. Small Example, you post a picture on one of the cell carries network/website, they have every legal right to use that as they will. So I dont say shame on Verizion, I say shame on the American People for allowing this to happen.We are the ones buying up cell phones like they are candy, signing contracts with out reading them, or standing up to them. It is the power of the people to force change, No one seems to remember that. All we can do is bitch about it.....stand up to the big dogs, and lets tame them.
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guy form the cell world, 7 May 2007 @ 11:13am

Re: hey
Correction: contracts with out reading them, or standing up to them.
Should reed....contracts with out reading them, and NOT standing up to them.
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Anonymous Coward, 7 May 2007 @ 11:22am

Yet another example of how socialistic our society has become, which will one day be our downfall.
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Andrew, 7 May 2007 @ 11:26am

Seems like a violation of ECPA to me
I was just reading about the ECPA in this pdf about laws that apply to higher education...then i saw this acticle..so I decided to post what it said here
http://www.educause.edu/ir/library/pdf/CSD2746.pdf

Electronic Communications Privacy Act (ECPA)

Unlike FERPA and HIPAA, which are specific to certain types of entities, the ECPA broadly prohibits the unauthorized use or interception by any person of the contents of any wire, oral or electronic communication.17 Protection of the “contents” of such communications, however, extends only to information concerning the “substance, purport, or meaning” of the communications.18 In other words, the ECPA likely would not protect from disclosure to third parties information such as the existence of the communication itself or the identity of the parties involved.19 As a result, the monitoring by institutions of students’ network use or of network usage patterns, generally, would not be prohibited by the ECPA.
The ECPA also prohibits unauthorized access to or disclosure of electronically stored wire and electronic communications.20 More specifically, the ECPA imposes liability on any person who intentionally accesses without authorization a facility through which an electronic communication service is provided, or exceeds an authorization to access that facility, if that person thereby obtains, alters or prevents authorized access to a wire or electronic communication while it is in electronic storage.21 While the ECPA restricts providers of public electronic communication services (specifically, providers of public access terminals and other public services) from divulging the contents of stored electronic communications, it does not appear to place the same restrictions on providers of private electronic communication services. Institutional e-mail systems and networks most likely would constitute private electronic communication services that enjoy the relaxed restrictions of the latter category, thus allowing institutions to monitor and access student e-mail accounts. Nevertheless, college and university computer use policies often strike a balance between student privacy rights and network security concerns by authorizing inspection by the institution of student e-mails or other communications only when there is reasonable basis to suspect improper use of a computer or network. In addition, educational institutions’ networks often serve multiple communities of users (for example, students, faculty, employees, alumni, and the general public) and the correct application of the ECPA may depend on the nature of the relationship between the institution and the user. Thus, an institution’s right to monitor electronic communications, or its obligation or ability to comply with a law enforcement request, may vary depending on whether the user in question is a student, an employee, or a member of the public.
The ECPA also contains specific exceptions allowing disclosures to law enforcement agencies under certain circumstances. Certain provisions of the USA PATRIOT Act, discussed below, substantially broaden the authority of law enforcement officials to obtain information under the ECPA. Under Section 210 of the USA PATRIOT Act, the scope of information that the government can obtain by subpoena has been expanded to include electronic communications, and law enforcement officials now can obtain information such as means and sources of payment, records of session times and duration, length of service and type(s) of service utilized, and user number or identity, including any temporarily assigned network addresses. Also, Section 212 of the USA PATRIOT Act amended the ECPA to permit communications service providers to release both content and non-content information about a wire or electronic communication to a law enforcement agency if the provider reasonably believes that the information must be provided without delay to avoid injury to any person. This provision of the ECPA was further amended, however, by the Cyber Security Enhancement Act of 2002, and it now permits communications service providers to divulge to a Federal, State, or local governmental entity the contents of a communication if the provider believes in “good faith” that “an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of communications relating to the emergency.’’22 In other words, in responding to an emergency situation, institutions are now allowed to release relevant information, including not just the existence but also the content of wire and electronic communications, to law enforcement officials if the institution in good faith determines that release of the information is necessary to avoid injury.
These changes have significance for institutions that essentially function in the role of Internet service provider, and the result has been to make it more complex and burdensome to respond appropriately to requests for information from law enforcement agencies. Service providers most likely can expect that, because the government now has easier access to warrants and other authority to intercept communications of all kinds, new demands will be placed on their systems and their information processing and retrieval capability.
The ECPA’s reach is long: a University of Delaware student who in the summer of 2002 obtained unauthorized access to the University’s computer system to give herself passing grades in three spring semester courses potentially violated the ECPA. In that case, the student allegedly called the University’s human resources office and impersonated her instructors to obtain new passwords, which in turn enabled her to log into the system as though she were her own professors. 23 No federal charges were brought under the ECPA, but the student pleaded guilty to misdemeanor charges on counts of criminal impersonation, unauthorized access to a computer system, and misuse of computer system information. She was sentenced to three years probation and ordered to pay $12,000 in restitution. Three counts of felony identity theft were dropped. The University, meanwhile, began reviewing its computer security measures and charged the student with three counts of academic dishonesty and three counts of violating the school’s “responsible computing” code.
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Rick, 7 May 2007 @ 11:34am

First off, this is partially covered by the 4th amendment regarding searches of personal property.

Also, what about the 9th amendment that implies the right to privacy?
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Rick Clinch, 7 May 2007 @ 11:38am

Re: Uhh-huh
So we do nothing and live with the casualties. You illustrate my fence sitting position well. Since we enjoy so many freedoms, do we pay for those freedoms with the occasional building full of bodies?

Pontificating is easier than cleaning up body parts, but then again I think we have a pretty good ability to get over things and move on...
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Jim Bower, 7 May 2007 @ 1:18pm

Re: Re: Uhh-huh
Exactly! That is exactly what we do; allow freedom and take the consequences. Your belief that killing freedom somehow protects you is a farce. There is no absolute protection from evil. Governments cannot provide it, no matter how and what they try to control.

Having said that, possibly we could have treated the Muslim communities with just a bit more sophistication in the past so that the death of thousands did not happen. On a statistical basis, the death of 3000 once in 200+ years of freedom is a non-event.
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dobestpossible, 7 May 2007 @ 3:49pm

Re: Uhh-huh
Notice that you are one the few left that understand our country's founders way of thinking regarding freedom. Majority of these posters are illogical, ignorant, or just following the "I have nothing to hide, so so-what about your rights" chant.
For those who are so stupid, consider this:
Do you wish others to tell you everything to and not to do? Can you trust some stranger to give you the best advice for you or your loved ones? Is money not what everyone is motivated by? Are your thoughts and ideas supposed to be automatically overshadowed because you think of yourself as small and worthless, and the ideas of others are always more important? Should you not be concerned that unknown people are monitoring your actions, passing judgments of what they consider to be right and wrong, and have the power to intervene into your life/home/assets to do further harm?
There are many things that majority of people consider wrong, but there are the "others" that disagree. For example, many (myself included) feel children should not be molested sexually. There are child molesters that feel it is their right to have sex with kids. Yet most know that is wrong-despite what molester's argument is. It should be universal that what is right is protected and what is wrong is not tolerated. Focus on the homosexuals that feel it is their right to disgust heterosexuals and get the right to marriage, healthcare, etc. Such sexual deviants are not right in their thinking or actions. If the people who know right from wrong allow those homosexuals that do wrong to get away with passing laws making it acceptable, than the next group of wrongdoers will stand up and say "we want our right to do wrong" as well. I think the illegal immigrants may be that group, but after that group, it will be the pedophiles and their right to have sex with anyone that they find will "get them off" as they so please (which will be the helpless children). I am shocked that people do not condemn wrong doers anymore, but most supposed "adults" are too connected to television than reality to know anything. Everything has to have a "cachy little rhyme" to garner attention from public, can't use intelligent speech anymore because "it's boring" for the simple. I also disagree with everyone having a right to vote, as it has caused our country to run debates as a beauty contest rather than leadership of future growth and development. Its all about what the "majority" thinks, and the majority can't even recite the bill of rights from the top of their head, completely re-worked the Constitution to shorthanded excerpts that have lost the real meaning, and don't care about the United States of America.
America is spoiling like an old banana and drastic actions to recover true values is needed. I would start with executing drug dealers and drug users. Nothing less will clear the population of the worthless and valueless. Beat the drug habit on your own as you have started your addiction, or die.
Many are too scared of death, and executions. Death is a natural occurence and is inevitable for everyone, sooner or later. Those who live but don't act right, and those actions wrong the right, should be put to the grave sooner rather than later. It is going to be necessary in order to keep chaos from destroying the people that do right. If we don't, everyone will suffer, entire world will be hungry, businesses won't be able to exist, and socialist governments are failures in reality but look nice in intentions written on paper.
----Rant Over------
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Rick Clinch, 7 May 2007 @ 4:42pm

Re: Re: Re: Uhh-huh
I think I have to agree. I think that absolute zealots (can't think for themselves) might misread my messages. I truly wonder about these things. i am not making a statement, but I really have to think that 9/11, Columbine, Virginia tech, etc are statistical non events and we should deal with them when they come but I find it hard to give up freedom to prevent them. At the same time I wonder if I am inhuman for suggesting that type of thing.

When I do fall off the fence I do so on the side of personal freedom, mourn the dead and then live on.
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Anonymous Coward, 7 May 2007 @ 5:32pm

Yup
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reed, 7 May 2007 @ 6:48pm

Re: Re: Re: Re: Uhh-huh
"I think I have to agree. I think that absolute zealots (can't think for themselves) might misread my messages. I truly "

There is no misreading, you are on the fence on whether we should give up more freedom for protection. My rant (which was rather silly) was just about highlighting the steps we would need to take in order to "protect" America.

"I really have to think that 9/11, Columbine, Virginia tech, etc are statistical non events and we should deal with them when they come but I find it hard to give up freedom to prevent them."

Very rational thought here. Statistically 9/11 was a anomaly of terrorism across the world. Terrorism has been about the same statistically for many years up until our invasion of the Middle East (Which many have argued greatly increased terrorism worldwide)

"At the same time I wonder if I am inhuman for suggesting that type of thing."

The only inhuman thing is to think you could put the ultimate authority over life and death in any one man's hands. That is what terrorism is in my book.
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Reed, 7 May 2007 @ 7:07pm

Re: Re: Some interesting points
"Many are too scared of death, and executions. "

The ability to kill someone who disagrees with your thoughts is the ultimate tyranny. That's probably why so many people are scared of it.

"Death is a natural occurence and is inevitable for everyone, sooner or later. Those who live but don't act right, and those actions wrong the right, should be put to the grave sooner rather than later."

Murder is not in the order of nature it is of man. Don't confuse the two.

"It is going to be necessary in order to keep chaos from destroying the people that do right. If we don't, everyone will suffer, entire world will be hungry, businesses won't be able to exist, and socialist governments are failures in reality but look nice in intentions written on paper."

I agree that we need to recover our old values. Our distaste of war (due mainly to the Civil War), our dis-trust of corporation (after all they are only in it for themselves), and our desire to provide for everyone in our country (Puritans we very socialistic)

The Base values of Christanity from the NEW TESTAMENT (Note: Christians are not Jewish so they should avoid quoting from Old Testament) of Love and respect for all people would be a good start.

Instead of killing everyone why not try helping everyone. Might not always work out but at least your not covered in the blood of the innocent.
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AC2, 7 May 2007 @ 7:11pm

Re:
Wha-- ??
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Rick Clinch, 7 May 2007 @ 8:39pm

Adults
So, reading all of these posts I have come to a couple of conclusions. Most of you are probably adults. And I would say that a good portion of you are also politically motivated to hate the current administration. I am 16 and a Junior in high school.
I read a lot of zealots who ignore their humanity to stand by some principle that they have devoted themselves to. Anyone, socialist or democrat (in the governing sense not party), who can't be human enough to bend, to see the grey in life is as dangerous in my book as the defective humans among us who seek to do harm. It just takes longer for their bad effects to be felt, but in the end more people are harmed. From what I can tell, and I sure don't know everyrthing, from my observation of adults on the news and in my town is that we have a lot of jealousy out there. People can say what they want, but I think I understand why one of the ten commandments is thou shall not covet. Greed and jealousy seem to be the root of a lot of our problems in society. Someone works hard and becomes rich and others call them names and look to take away their money. Someone is happy living a peaceful life, eating and wearing what they want and they are called names and cast out.

Adults need to see that the world is not black and white! There is enough grey in every situation that there should be an answer to every solution. If it requires force, then so be it. I know people that can only think of one thing and not let it go. When that obsession leads them to try to destroy other countries, cultures, people, etc. Good people need to stop them at all cost. But we should also remember that if we just talk once in a while those scenarios will become just as rare as other bad things that happen (Columbine, VT, 9/11, etc.) I think though, that too many people have conversations in tense situations, with one goal in mind. What's in it for themselves? What will they be able to gain by talking to this other party?

PETA, Greenpeace, Anti Smoking, Anti Abortion, Al Gore, Spanish Inquisition, even the U.S. at times are all examples of groups, people and countries looking to gain something that might not be in the best interest of everyone. Some things on the surface look like a good thing, but then it is the greed of individuals that kicks in a ruins the good in the actions. The treatment of the indians in the US was terrible, and to make up for it we have screwed everything up so bad that it can never be right. The fact that the indians can live outside the law, and still be US citizens it an absolute joke, casinos should be taxed like any other business, no matter who runs them. The fact that anyone can still be a Catholic after what the church did in the dark ages is crazy talk. But then athiests get so zealous in their actions that nobody can take them seriously. Shut up and believe what you want to believe. I would even say it is ok to offer to share your belief, but don't put me down and belittle me if I choose not to believe the same way you do.

You adults have really screwed things up for the rest of us, and unfortunately most of the people my age will probably just slip right into the open slots in your groups to take up the charge. Thanks for very little.
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reed, 7 May 2007 @ 8:56pm

Re: Adults
"You adults have really screwed things up for the rest of us, and unfortunately most of the people my age will probably just slip right into the open slots in your groups to take up the charge. Thanks for very little."

Yes we have screwed up. But we didn't start the fire (haha) we just keep passing the buck on, maybe your generation will be the one to do something about it?

Yes we will co-opt all you little free thinkers into our fold. You have no choice, we have already explained to you the meaning of your existence. We tell you what you want and what you need in order to be happy. Fighting against this process would be so long and hard. Much easier to just get a job and submit to materialism.
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Super Bob, 7 May 2007 @ 11:49pm

#15 is the only correct one here.
Call records have never qualified as a wire tap. If the provider decides to turn over the information, it's perfectly legit and always has been. This is more of an example of our over litigious society than it is an example of Big Brother.
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Anonymous Coward, 8 May 2007 @ 1:17am

Re: Re: Uhh-huh
Freedom has a cost. Those unwilling to pay don't deserve it.
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Max, 8 May 2007 @ 7:54am

Re: so wait
No amendment nullifies any other amendment, that is unless you adhere to the Alberto Gonzales theory of rights.
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Ben Franklin was right, 8 May 2007 @ 10:16am

Sacrafice freedom for security and you have neithe
Rick, I understand your "I'm not up to anything, so what's the harm" reasoning, but there's a huge danger there you seem to ignore. It's not the tapping of that information that's so egregeous, it's the fact that it was done with no oversight that is concerning.

If you allow unwarranted tapping of private communications then you are sanctioning activities that allow for a political incident that could make Watergate look like a tea party. Politicians, especially those who have influence over or favor within the telcos, could track their rivals activities under the guise of 'national security'. What they do with that information is entirely up to them.

We are, I suspect, both proud citizens of the United States of America. But is that the kind of political system you could be proud of? Having seen what happens with an imperial government, our founding fathers guaranteed a balance of power by establishing three equal branches of government. The Bush administration has long considered the judicial branch of the government it's archrival, either circumventing it or attacking it, as they did with the judicial firings.

The fact is, the judicial branch was never intended to reflect the current elected officials' policy, but to provide a continuity across administrations, hence the Supreme Court is not elected, but appointed for life (or retirement, whichever comes first). Note: Articles 1-3 of the Constitution are the cornerstone of this triumvirate.

We need to re-establish the balance the founding fathers fought so hard to establish. We complain when it doesn't "go our way", but remember the results of past efforts to centralize power, Ceasar, Stalin, Hitler, Pol Pot.

The abuse of this power is potentially more damaging that that of the terrorist. As is often the case, the biggest threat can come from within.
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mike, 8 May 2007 @ 11:54pm

Verizon
How the hell can they do that? The data they hold surely qualifies as "privileged informaton" doesn't it? Or isn't that concept recognised in US law?
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nancy, 4 Dec 2007 @ 7:16am

idk wat 2 put here i was just bored
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jeff, 24 Apr 2008 @ 7:17pm

Should I pay my verizon bill, after I move my service to someone else?
I have been using Verizon for a year and a half. At this point however, when I ordered DSL service, LD and local, I don't remember ordering the 'full surveillance package'; hense, I am moving to another company, and I don't feel obligated to pay for a level of service I didn't order. Does anyone know if this is something I can deal with in small claims court? (since my bill is less than 300.00).
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Dawn N McKenzie, 15 Jun 2010 @ 9:57pm

Verizon Illegal Wiretapping - Highly Opine
I would appreciate if Techdirt will help me get truth out about Verizon, whom I affectionately call Va Lie Zon. I have been in a 3 year battle with these Fraudsters (of course in my opinion) and it has been a pure nightmare. They have blackballed me from employment, stole my mail, followed me on the highway, like it is Jim Crow in the 21st Century, mail Fraud and have aligned with certain Government entities to cover it all up and ruin me and my family in the process. I can hear them clicking in my phone. This case needs public exposure. A manager told me, when they want to get you they will. Another manager told this guy, after he alleges he was set up, and threatened to sue, the manager told him go ahead, you will never as Verizon has all the money and best attorneys, you will only waste your time and money. They think they are above the Law and can ruin lives for sport. Twitter ddiamond61
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