Watch What You Say

Two months after the New York Times revealed that the Bush Administration ordered the National Security Agency to conduct warrantless surveillance of American citizens, only three corporations--AT&T, Sprint and MCI--have been identified by the media as cooperating. If the reports in the Times and other newspapers are true, these companies have allowed the NSA to intercept thousands of telephone calls, fax messages and e-mails without warrants from a special oversight court established by Congress under the 1978 Foreign Intelligence Surveillance Act (FISA). Some companies, according to the same reports, have given the NSA a direct hookup to their huge databases of communications records. The NSA, using the same supercomputers that analyze foreign communications, sifts through this data for key words and phrases that could indicate communication to or from suspected terrorists or terrorist sympathizers and then tracks those individuals and their ever-widening circle of associates. "This is the US version of Echelon," says Albert Gidari, a prominent telecommunications attorney in Seattle, referring to a massive eavesdropping program run by the NSA and its English-speaking counterparts that created a huge controversy in Europe in the late 1990s.

So far, a handful of Democratic lawmakers--Representative John Conyers, the ranking Democrat on the House Judiciary Committee, and Senators Edward Kennedy and Russell Feingold--have attempted to obtain information from companies involved in the domestic surveillance program. But they've largely been rebuffed. Further details about the highly classified program are likely to emerge as the Electronic Frontier Foundation pursues a lawsuit, filed January 31, against AT&T for violating privacy laws by giving the NSA direct access to its telephone records database and Internet transaction logs. On February 16 a federal judge gave the Bush Administration until March 8 to turn over a list of internal documents related to two other lawsuits, filed by the American Civil Liberties Union and the Electronic Privacy Information Center, seeking an injunction to end the program.

Despite the President's rigorous defense of the program, no company has dared to admit its cooperation publicly. Their reticence is understandable: The Justice Department has launched a criminal investigation of the government officials who leaked the NSA story to the Times, and many constitutional scholars and a few lawmakers believe the program is both illegal and unconstitutional. And the companies may be embarrassed at being caught--particularly AT&T, which spent millions advertising its global services during the Winter Olympics. "It's a huge betrayal of the public trust, and they know it," says Bruce Schneier, the founder and chief technology officer of Counterpane Internet Security, a California consulting firm.

Corporations have been cooperating with the NSA for half a century. What's different now is that they appear to be helping the NSA deploy its awesome computing and data-mining powers inside the United States in direct contravention of US law, which specifically bans the agency from collecting information from US citizens living inside the United States. "They wouldn't touch US persons before unless they had a FISA warrant," says a former national security official who read NSA intercepts as part of his work for the State Department and the Pentagon.

This is happening at a time when both the military and its spy agencies are more dependent on the private sector than ever before, and an increasing number of companies are involved. In the 1970s, when Congress acted to stop domestic spying programs like Operation Shamrock, in which the NSA monitored overseas telegrams and phone calls, the communications industry was in its infancy. "It was basically Western Union for cables, and AT&T for the telephone," says James Bamford, who revealed the existence of the NSA in his famous book The Puzzle Palace and is a plaintiff in the ACLU lawsuit. "It's much more complicated now." In fact, today's global telecom market includes dozens of companies that compete with AT&T, Sprint and MCI for telephone and mobile services, as well as scores of Internet service providers like Google, Yahoo! and AOL that offer e-mail, Internet and voice connections to customers around the world. They are served by multinational conglomerates like Apollo, Flag Atlantic and Global Crossing, which own and operate the global system of undersea fiber-optic cables that link the United States to the rest of the world. Any one of them could be among the companies contacted by intelligence officials when President Bush issued his 2002 executive order to obtain surveillance without FISA approval.