On Second Thought: Why Was Verizon's Challenge To Bulk Phone Records Collection So Weak?

from the you-can-do-better-than-that dept

Mon, Apr 28th 2014 7:41am — Mike Masnick

On Friday we wrote about an unnamed phone company apparently challenging the FISA Court's order to hand over certain phone records on basically every phone call, noting that the FISA Court shot down that challenge. The phone company was not identified, but the Washington Post says that people have confirmed that it's Verizon. That isn't all that surprising. As far as we know, the Section 215 bulk phone record orders are mainly used on Verizon and AT&T, but not other, smaller phone companies.

In our post, we suggested the nameless telco deserved kudos for actually challenging the order, but in retrospect, the company only deserves very partial kudos. First, assuming it's Verizon, the company has been receiving these orders every three months for something close to eight years. And it just challenged them now? Second, the challenged relied entirely on Judge Richard Leon's ruling from December that found the Section 215 program unconstitutional. Verizon did not make any specific statutory or constitutional challenges itself to the order. It just pointed to Judge Leon's ruling and said that, based on that ruling, it was questioning the order. In fact, it's not even clear if Verizon was actively challenging the order, or just asking for clarification based on Judge Leon's ruling.

That's a fairly weak challenge, and allowed FISC judge Rosemary Collyer to just handwave away Judge Leon's arguments, without Verizon having to present any real arguments itself. It's a challenge, certainly, but a rather weak one that Verizon had to know it would lose, and which didn't require much effort at all.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: fisa court, fisc, richard leon, rosemary collyer, section 215
Companies: verizon

14 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

kP (profile), 28 Apr 2014 @ 7:47am

Money...
Probably cheaper for them to comply. They can put up some pro forma resistance to say they tried, and then just open up their system and let the data flow.
[ link to this | view in thread ]
Anonymous Coward, 28 Apr 2014 @ 7:50am

Seems like they're just interested in covering their asses, in case Judge Leon was right and it's unconstitutional. Because that would probably invalidate the immunity they got a few years back from Congress, too. So they're just trying to make sure of it, to know what to do next. I don't think they care either way, that's why they're not really challenging the government.
[ link to this | view in thread ]
Anonymous Coward, 28 Apr 2014 @ 8:01am

...What are the odds that this was an intentional move by Verizon, to steal many more millions of taxpayer's money processing these claims?
[ link to this | view in thread ]
Pixelation, 28 Apr 2014 @ 8:07am

Shocker
Government asks and large corporation drops trou.
[ link to this | view in thread ]
Anonymous Coward, 28 Apr 2014 @ 8:10am

because it's better to keep in with the government and get massive subsidies, whilst doing nothing in return, than doing as is expected from a good broadband provider, like providing good broadband!!
[ link to this | view in thread ]
Anonymous Coward, 28 Apr 2014 @ 8:30am

this "challenge" is just an exercise in PR, nothing more.
[ link to this | view in thread ]
Anonymous Coward, 28 Apr 2014 @ 8:44am

Do you actually think the FISA court is going to be anything other than a rubber-stamp for the intelligence community? I don't think, given their previous dismissal (and their past record) that there's an argument Verizon (or anyone else) can make that will cause one of these orders to be overturned.
[ link to this | view in thread ]
Anonymous Coward, 28 Apr 2014 @ 8:44am

Misery...
The endless game of politics. It works because people are stupid and believe stupid things.

A business will never waste money on a customers behalf when it does not fit into their advertised business model. Verizon is a Whore Corp purchased for near exclusive use by the US Government.

Businesses never needed unique protections and classifications but because people are universally stupid it appears that they are needed.

Now, government and courts consistently use 'Third Party' doctrine to remove every possible Constitutional Right you have. Its one of the biggest breaches of Citizens Rights that has ever occurred in this nation and proves that.

The 4th is clear as a bell ringing loudly in all but the most corrupt of ears. Your personal information and property never loses protection regardless of where you put it 2nd, 3rd, unto an Infinite number of parties, unless you put it somewhere that is declared PUBLIC!
[ link to this | view in thread ]
Anonymous Coward, 28 Apr 2014 @ 9:57am

Why was Smith vs Maryland applicable here
I understand why it may be if you or I challenge the collection. But how does the 3rd party doctrine apply when the challenger is the 3rd party?
[ link to this | view in thread ]
Loki, 28 Apr 2014 @ 10:27am

That's not a challenge, that's the sort of grandstanding we see from politicians all the time so they can come back later and say they actually tried to do something.
[ link to this | view in thread ]
Anonymous Coward, 28 Apr 2014 @ 10:28am

Re: Why was Smith vs Maryland applicable here
Never-mind, I figured it out myself. The opinion states that Verizon was not raising a question regarding own 4th amendment rights, only those of its customers.
[ link to this | view in thread ]
zip, 28 Apr 2014 @ 11:01am

RIAA v. Verizon
A decade ago, Verizon stood out as the only internet provider that refused to collaborate with the RIAA's extortion scheme demanding that Verizon rat-out its own customers, and successfully fought the recording industry cartel all the way to the Supreme Court over that issue.

Unfortunately, even tenacious privacy advocates like Verizon tend to fold without so much as a whimper when the government starts knocking and utters those magic words, national security .
[ link to this | view in thread ]
Anonymous Coward, 28 Apr 2014 @ 12:00pm

Re: RIAA v. Verizon
RIAA is another organization, they just did not want to have to pay to police for them. They lost nothing telling RIAA to take a hike... that is until Verizon starting owning content... now its a different story.
[ link to this | view in thread ]
John Bennett, 28 Apr 2014 @ 12:02pm

Verizon and its "service"
Verizon is my ISP. The quality of its service has recently gone to terrible. This afternoon I tried to go to the WHUT website. I gave up after 15 minutes. Other websites seem to be afflicted with popup ads and repeated switches of address that send you somewhere else than you want and slow the use of the web terribly. I have been using the web for 10 or more years (I no longer remember how long). The service is worse and the cost keeps rising. Now it looks as if the government is about to allow something called premium service. Lucky us.
[ link to this | view in thread ]