May 11, 2006

A Jibe Called Quest

Matt Stoller makes the argument that Quest Communications should be rewarded for refusing to provide non-personal "outside" call data to the National Security Agency. This leaves a significant hole in the NSA database that they are trying to use to help catch al Qaeda terrorists that are trying to kill folks like you and me.

I thought about what Matt had to say, and decided he was right, so I decided to help Quest work on their branding with a snazzy new ad campaign featuring one of their old slogans for that hip "retro" feel.

I think it captures their corporate spirit quite well, don't you?

Posted by Confederate Yankee at May 11, 2006 09:51 AM | TrackBack


Posted by: The Ugly American at May 11, 2006 11:18 AM

It's not Qwest's fault. They've got contracts with their customers, preventing them handing over this data to just anyone, even if they ask really really nicely. Even if they're the President. Qwest's lawyers weren't convinced that it was legal for them to hand over the data without a court order. If it turned out to be illegal, and Qwest's customers filed a class action, the liability would be astronomical, and sink the business.

The solution is easy. Refuse, and make the NSA take Qwest to court. If the court rules that the request was legal, and it's Qwest's responsibility to hand it over, then the legal problems are solved. That's all Qwest is asking.

The kicker is, if the Qwest executives did anything else, *they* could be sued by their shareholders for taking unnecessary risks, regardless of whether there was any actual liability or not.

Note that it's irrelevant what the other carriers are doing, because every carrier has different contracts with its customers.

They're really between a rock and a hard place on this one. You should give them a break.

Posted by: Mat at May 11, 2006 11:53 AM

What possible reason could Bush have for refusing to get warrants?

Posted by: Dave Johnson at May 11, 2006 01:36 PM

Actually, Mat, Qwest asked the NSA to see the legal authorization for handing over this information, and NSA refused to provide it. This was Qwest's reason for saying no.

Posted by: Dave Johnson at May 11, 2006 01:37 PM
What possible reason could Bush have for refusing to get warrants?

Not needing them, apparently.

The is no Constitutional reason he needed warrants (there is no forth amendment challege, and that is the only Constitutional claim in the ballpark according to no less than Orrin Kerr), and the statutory limitations of the pen register and FISA laws were apparently designed for on-going, live investigations, not the stored data the NSA was asking for here.

Posted by: Confederate Yankee at May 11, 2006 01:49 PM

That's hilarious. You made a joke about the gravesite of thousands of Americans. All because a company wanted to see the legal support for the government's request for private phone records.

Serisouly, I'm laughing my butt off over here. A joke at the expense of thousands of dead Americans. You sir, are a true patriot. Keep fighting the good fight against the America Hating Liberals.

Posted by: Mel Torme at May 11, 2006 03:26 PM

And if it were President Gore y'all would be so relaxed about it?

Uh huh.

Posted by: salvage at May 11, 2006 03:27 PM


You misunderstand. The implication is that terrorists now know, thanks to USA Today and Qwest, what network to use to make their communications. Laughing my butt off at the idyuts that didn't get it.

Posted by: Specter at May 11, 2006 04:19 PM

You just said this:

"The is no Constitutional reason he needed warrants."

Apparently you are now an expert on Constitutional law. Perhaps, then, you could explain this comment, from Glenn Greenwald's blog, in which you seem to indicate that you believe the Constitution is about the relations between private citizens, not the relations between private citizens and their government.

"You are using this same kind of external customer data for commercial gain, while the NSA is collection it to save your life. I don’t think we need to be lawyers to figure out which use is more constitutionally valid."

I asked it before, and you didn't respond, so I'll ask it again: have you ever even read the Constitution? This is 5th grade civics stuff.

Posted by: Alex at May 11, 2006 07:18 PM


Have you read this post from Orin Kerr?

Posted by: Cervus at May 11, 2006 07:55 PM

As a matter of fact, I have. And Kerr's post addresses CY's fundamental ignorance of the Constitution how?

Posted by: Alex at May 11, 2006 08:07 PM
I asked it before, and you didn't respond, so I'll ask it again: have you ever even read the Constitution?

Nah, I skipped fifth grade. My point at Greenwald's was that national defense is a far more valid reason for data collection that is commerce.

Posted by: Confederate Yankee at May 11, 2006 08:28 PM

Though I would consider myself liberal, I will point out to everyone that our privacy was lost long ago. Law enforcement at all levels has been listening to whatever they want, whenever they want for years now. However, it is only legal and publicly acceptable to offer it in a public forum such as a courtroom with a warrant. That is...until Bush was elected into office.

What did everybody expect when they elected a man of inherited priveledge who had spent a lifetime of partying, breaking rules, dodging responsibilities, and bankrupting every business ever handed to him on a platter. He respects nothing. You can't appreciate, nor abide to any standard when everything is handed to you and you know no limitations.

Posted by: Johnny at May 11, 2006 10:35 PM

"My point at Greenwald's was that national defense is a far more valid reason for data collection that is commerce."

I understand what your point was - but the fact that your overarching point didn't have to do with Constitutional law doesn't change the fact that the final question in your post, the one that you were leading up to, was a gotcha question asking wasn't it a worse Constitutional violation for private industry to be doing what the NSA has done. The answer is no, it's not, and not because I don't think you have a point worth exploring about private industry's collection of data, but because the question is ridiculous on its face - the Constitution doesn't regulate the relationship of private citizens to one another. It regulates the relationship between private citizens and our government - the "Social Contract" idea that our founders were so fond of made formal and tangible. To hold yourself out as some sort of expert on the Constitution and not understand this basic premise behind the Constitution, well...

Posted by: Alex at May 11, 2006 11:34 PM
Actually, Mat, Qwest asked the NSA to see the legal authorization for handing over this information, and NSA refused to provide it. This was Qwest's reason for saying no.

Well, we're not disagreeing. I just want to mention that Qwest is a for-profit venture run in the USA. If the NSA asks them for a favour, they'll do it, as long as it doesn't cost them money. In this case it could have cost them money. Qwest isn't a hero, or a villian, just a big machine running its program.

Posted by: Mat at May 12, 2006 12:47 AM

I'm sorry, but I've gotta' side with Alex here. The idea behind the Constitution and Bill of Rights is not to limit private entities, but to limit the goverment's power.

Sure, yielding phone data is better for safety than marketing, or some such, but the point is that the governement has limits to what it can do.

Additionally, Alex is right on Qwest's refusal. According to the article, Qwest requested additional legal argumentation for the request, and never received it. Why didn't the NSA get a court order? Could it be because it would be refused?

And if this program is designed for our safety, why is it saving the data from normal citizens like you and me? After finding out about Joe X's terrorist ties, the FBI is surely allowed to get Joe's old phone records. No need for yours or mine. And if they are looking for patterns, as has been argued, then, again, what patterns? I would expect those with frequent calls to countries with ties to terrorism or "charity groups" with the same ties (remember the big crack-down on "Islamic Charity" groups that were just fronts for cash wiring?) would be a red flag enough. But does that warrent monitoring *all* calls?

This is bad news.

Posted by: Just stopping by at May 12, 2006 12:58 AM

Oh, and as for the legality of it, I don't know if it does fall under the FISA code, as you'd mentioned, but it sounds like a "pen register" operation, which also requires a warrent, but this is just what I've been reading. I suggest this gets looked into before anyone starts yelling about how "totally legal" or "totally illegal" the program is.

And disregarding the legality, it's still flippin' creepy.

Posted by: Just stopping by again at May 12, 2006 01:03 AM

Smith vs. Maryland (1979). Collecting phone numbers and duration of call information (exactly what this program did, apparently) is not a violation of the Constitution. is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information and does in fact record it for various legitimate business purposes. And petitioner did not demonstrate an expectation of privacy merely by using his home phone rather than some other phone, since his conduct, although perhaps calculated to keep the contents of his conversation private, was not calculated to preserve the privacy of the number he dialed. Second, even if petitioner did harbor some subjective expectation of privacy, this expectation was not one that society is prepared to recognize as "reasonable." When petitioner voluntarily conveyed numerical information to the phone company and "exposed" that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information [442 U.S. 735, 736] to the police...

That was from the Supreme Court, folks.

Posted by: Confederate Yankee at May 12, 2006 06:29 AM

I agree with you that there's no way this is a violation of the constitution. That doesn't make it legal. It could well be legal for the NSA to demand this information, but still illegal for Qwest to hand it over.

Posted by: Mat at May 12, 2006 09:15 AM

Good catch, CY, but Mat does hit on another issue: Are the telecoms liable for breach of contract? Many of the privacy statements of these telecoms state that call records are private, unless requested by court order (the NSA is not a court). Additionally, the Stored Communications Act makes this disclosure punishable by a $1000 (per individual) settlement.

Kinda' makes me wish I had AT&T... Could use a new hard drive.

Posted by: Just stopping by at May 12, 2006 10:24 AM

This bothers me, why does the government look at my records or yours? We are not Arabs or Muslims. Our war is with Muslims. Not everyone in the USA. Why do I have to be searched when I board a plane, bus, train, subway, or enter a mall? I WWII the enemy was defined and taken care of both at home and across the ocean. Here we assume everyone is the enemy or else that the enemy might be offended if he or she is targeted. Stop wasting resources both monetary and political. Target Muslims. Leave everyone else alone. That was the intent of the Constitution.

Posted by: David Caskey at May 12, 2006 10:45 AM


It might be that the telecoms are in breach, but withe 50 state jusrisdictions involved here as well as various companies and various contracts for each company in each state, I'm sure that no matter what I say, somewhere I'd be wrong, so I'll leave that alone for now.

As for the Stored Communications Act, Orin Kerr, who I greatly respect in such matters, thinks that pre-2006 disclosures may be in violation, but that an update to a specific provision to the Patriot Act might make such current and future disclosures legal. Read it yourself and draw your own conclusions.

Posted by: Confederate Yankee at May 12, 2006 11:00 AM

They day I saw Republicans give away any notion of a civil liberty to the government they always said they mistrusted...would be the darkest day for America.

Explain to me how data mining for "terrorist patterns" in phone numbers and duration works?
What classfies as a pattern?

Have you lost all touch with reality?

Posted by: nick at May 12, 2006 11:09 AM

First, let me start by saying that anyone who calls himself "Jedi Nick" shouldn't be lecturing others on reality.

Social network analysis, uses data-mining to map and measure data flows, and is used from everything from your liberal "netroots" political campaigns, to disease control, to figuring out how to allocate resources in a computer network, to figuering out how to locate, infiltrate, and destroy terrorist networks.

If you want details about how data mining works, it's easy: try using Google.

Posted by: Confederate Yankee at May 12, 2006 11:59 AM


Posted by: Specter at May 12, 2006 04:17 PM

"Law enforcement at all levels has been listening to whatever they want, whenever they want for years now."


Except that now they have actually installed the equipment -mand the eans to get the data to NSA - that enables them to listen to any call or read any e-mail - foreign or domestic. That's expensive equipment and it's expensive to hire the staff required to support such an effort. They were theoretically able to do so before but now they also have the physical means to do so.

Posted by: Dave Johnson at May 12, 2006 08:23 PM

Dave ...

Why would the NSA want to monitor calls not related to terrorist activities - just for grins?

I worked there for 36 years. We did nothing just for grins. We defined critical strategic targets and went after them.

How long have you been afflicted with this acute paranoia - and the misplaced notion that you are important enough for the NSA or CIA or anyone else to really give a damn?

No one at the NSA will waste their time. They have more important missions and objectives to protect your pathetic paranoic butt.

You really need to do something about that problem you have.

Posted by: Retired Spy at May 12, 2006 10:09 PM

The griping about this is running on pure emotion. This is simply monitoring of traffic patterns. Allowing computers to pickup patterns based on known terrorist contact numbers does not violate anyone's rights. It makes absolute sense to do this. Once those patterns isolate targets I suppose some libertarians can legitimately bitch about warrantless monitoring of said calls.

The opposition to the data-mining though is indefensible. Quest's position is irresponsible regardless the bogus liability argument presented in previous comments. We're supposed to believe Quest doesn't sell traffic info to make a buck? Get real.

This discussion simply points out that some Americans still understand what it takes to survive while others are too immature and pampered to even defend themselves.


Posted by: Richard at May 14, 2006 07:30 AM

How did NSA take Quest's rejection? Any retaliation?

Posted by: Gengis Kahn at May 14, 2006 11:18 AM

Huh? Retaliation for what? For lessening the NSA's ability to seek out terrorist operatives inside the United States?

The folks at Qwest will be the first ones to cry foul when someone cuts off the heads of a few of their family members.

Of course, that will be Bush's fault too.

Posted by: Retired Spy at May 14, 2006 05:20 PM