Listen Up: Should the Telecoms be Punished for Helping Protect You from Terrorists?

By Cliff May
Thursday, March 6, 2008

Are you outraged? You’re supposed to be. According to Peter Eliasberg, a lawyer for the American Civil Liberties Union (ACLU), in the immediate aftermath of the 9/11/01 attacks, “everybody in the country” may have had their phone calls “combed through” for terrorist connections and, if that happened, he told the Washington Post, “lots of people will be outraged.”

Would you be among them? Or would you, like me, be relieved to know that on at least this occasion, the government did its job?

During the 1990s, thousands of terrorists were trained in Afghanistan, Lebanon, Iraq, Iran and elsewhere. The government did next to nothing about that. Terrorists groups and the regimes backing them were seldom infiltrated. Neither terrorists nor their masters were effectively monitored. Despite the first bombing of the World Trade Center in 1993, and a string of subsequent attacks on other American targets in the years that followed, our intelligence agencies knew little -- and did less -- about al-Qaeda and other militant Islamist groups intent on mass-murdering Americans.

But after 9/11/01, one of the steps our intelligence officials took was to go to the big telecommunications firms and ask for help. Another attack could be coming – maybe more after that. The officials wanted access to data that might contain clues – dots they might be able to connect. The idea was not to have a federal agent listening in on your calls to Uncle Moe in Toledo. The idea was to gather huge quantities of information, “meta-data,” and mine it – seeking out patterns that might indicate terrorist connections or activities.

The methodology is sophisticated and top-secret. But here’s a simple example: If your Uncle Moe in Toledo were receiving regular calls from Tehran and then phoning Hamburg afterwards -- maybe someone in intelligence would want to find out more about the individuals calling and being called, and maybe that would lead to some actual eavesdropping and/or investigating.

An important point: The Supreme Court has held for decades that telephone record information—as opposed to the content of phone calls— triggers no Fourth Amendment privacy interest. You have no expectation of privacy in the numbers you dial because you expect the phone company to keep records of those numbers. What if you wanted to challenge a phone bill? You’d be pretty peeved if the phone company did not have records of the calls you made, when you made them and how long you stayed on the line.

I do not believe this kind of intelligence gathering outrages normal Americans. I think most Americans say: “Good for government and good for the telecoms. They did their duty. They helped protect us” But the ACLU and some other groups that call themselves “civil liberties advocates” do claim to be outraged. Also outraged – or perhaps just excited – are the plaintiffs’ attorneys who have nearly 40 lawsuits pending before federal courts. If these lawyers prevail, tens of billions of dollars will be extracted from such firms as AT&T, Cingular Wireless, Bell South, Sprint and Verizon Communications.

Trial lawyers are among the most generous donors to the Democratic Party -- but leave aside whether that may explain House Speaker Nancy Pelosi refusing to let House members vote on a bill to protect the telecoms from being sued for contributing to the effort to thwart terrorists.

Leave aside, too, that Sen. Jay Rockefeller, the Democrat who chairs the Senate Intelligence Committee, defended the telecom companies last month, telling his colleagues: "What is the big payoff for the telephone companies? They get paid a lot of money? No. They get paid nothing. What do they get for this [for cooperating with intelligence officials to prevent terrorism]? They get $40 billion worth of suits, grief, trashing, but they do it.” (It is not clear that Senator Rockefeller still has the courage of those convictions this month.)

But do not leave aside this: As the Washington Post reported, there is “one thing on which both sides agree: If the lawsuits go forward sensitive details about the scope and methods of the Bush administration’s surveillance efforts could be divulged for the first time.” Divulged not just to the media – but also to terrorists intent on murdering you and your children.

For having written that, I will be accused of “fear-mongering.” So be it. If America’s experience with terrorism teaches anything, it’s that we have more to fear than fear itself. When politicians cave to special interests who want to make national security policy – and billions of dollars – in courtrooms, that should raise fears, too. And if it doesn’t outrage you, maybe nothing will.