Tapping into AT


THE BUSH ADMINISTRATION has spent much of the last few weeks trying to explain that to protect American democracy, it must sometimes spy on American citizens. Now the debate over its warrantless domestic spying program has reached out to touch one of the iconic names of American capitalism: Ma Bell.

The Electronic Frontier Foundation, an advocacy group for civil liberties in cyberspace, sued AT&T; last week, alleging that the company violated its duty to keep phone records and conversations private. The suit asserts that AT&T; not only allowed the National Security Agency to intercept phone calls without a warrant as part of its program to monitor the calls of U.S. residents with suspected ties to terrorists overseas, but it also enabled government agents to sift through the company’s vast database of calling records in search of suspicious activity.

The lawsuit takes an indirect route to the foundation’s ultimate goal, which is to force investigators to get a court’s approval before spying on U.S. residents. At Senate hearings on the NSA program, which begin Monday, members of the Judiciary Committee may want to borrow from the foundation’s strategy and see what they can learn not just from government officials but from telecommunications executives, who cannot hide behind executive privilege.


Ma Bell is certainly an inviting target. Outside of the NSA, no one knows more about the domestic surveillance program than the phone companies, the largest of which is AT&T.; And the Bush administration has been extremely tight-lipped about the program’s details. As a result, it is impossible to judge whether the program has focused exclusively on people chatting with Al Qaeda, as President Bush likes to say, or a much larger group of Americans who just happen to make or receive international calls.

AT&T;, which isn’t commenting on the suit, may have felt it had no choice but to comply with the NSA’s requests. Federal law requires telephone companies to cooperate with law enforcement demands if they are supported by a court order or, in emergencies, certification from the U.S. attorney general that no court order is necessary. The surveillance program was almost certainly backed by just such a certification, and that could stop the lawsuit in its tracks.

Ideally, the lawsuit will stop AT&T; from cooperating in the NSA program, or at least prod it to put up more resistance. There is no need or excuse for warrantless surveillance in America, especially given the accelerated procedures Congress established for obtaining such warrants. Indeed, the court that Congress created with the Foreign Intelligence Surveillance Act is notoriously accommodating to such requests. In addition, the administration’s assertion that it can conduct whatever spying operation it pleases during the unrelenting war on terrorism is an affront to Americans’ privacy and due-process rights.

More practically, the lawsuit may also reveal how the spying program works and what types of information it collects. But the administration views such details as sensitive national security secrets, and it is likely the government will try to have the lawsuit thrown out before any such disclosures are made.

In the mid-1970s, the late Sen. Frank Church, an Idaho Democrat, led a Senate investigation into domestic spying and other abuses of power by the NSA and federal agencies. By interviewing executives from telecommunications companies, his investigators gained critical details about the government’s snooping. Members of the Senate Judiciary Committee could learn from the Church committee’s boldness.