FCC Won’t Investigate NSA Phone Privacy Complaint
The FCC won’t investigate whether phone companies violated consumer privacy by cooperating with the National Security Agency to give the agency access to phone records, Chmn. Martin said in a letter to Rep. Markey (D-Mass.). Markey, a senior House Democrat on telecom issues, had called for an investigation of whether phone companies violated Sec. 222 of the Communications Act, which requires carriers to protect the confidentiality of customer information (CD May 16 p1).
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Martin said an investigation wouldn’t be appropriate because of security concerns expressed by John Negroponte, dir. of National Intelligence, and NSA Dir. Keith Alexander. “The representations of Dir. Negroponte and Gen. Alexander make clear that it would not be possible for us to investigate the activities addressed in your letter without examining highly sensitive classified information,"” Martin said in his letter. “The Commission has no power to order the production of classified material.” Martin also said the statutory privilege that applies to NSA activities under the National Security Act of 1959 effectively prohibits an investigation.
Markey said he was disappointed that the Commission won’t even launch an investigation. “We can’t have a situation where the FCC, charged with enforcing the law, won’t even begin an investigation of apparent violations of the law because it predicts the Administration will roadblock any investigations citing national security,"” Markey said in a written statement.
“The call for an investigation was misguided,” said Senate Commerce Committee Chmn. Stevens (R-Alaska) in comments after Republican policy lunches: “There was nothing much to examine.” Stevens said he had been briefed on the phone company program and believed the information the companies gave the NSA was equivalent to creating a database of the names and phone numbers in a phone book.
Markey complained that the FCC “has taken a pass at investigating what is estimated to be the nation’s largest violation of consumer privacy ever to occur.” He said Congress “must step in.” If the FCC refuses even to demand answers, the White House never has to block the enforcement agency from getting to the bottom of this, he said: “The American people deserve answers.” Markey and other Democrats on the Commerce Committee have also called for hearings on the allegations. Markey said he has received no response from Chmn. Barton (R-Tex.)
Marc Rotenberg, exec. dir. of the Electronic Privacy Information Center, told us he had hoped Martin would support a probe since had expressed concerns about Sec. 222 violations. He said EPIC would consider taking the FCC to court to compel it to meet its statutory obligations. “This is very disappointing,” Rotenberg said. “I don’t believe that the FCC chairman can abrogate the Commission’s responsibility to safeguard consumer privacy… We had worked with [Martin] on the Section 222 issue in the past. We legitimately hoped he would act on our request.”
Privacy expert Rob Douglas said he was disappointed but not surprised at Martin’s decision. He doesn’t expect further hearings in Congress, he said. “The FCC is missing an opportunity to try to get to the bottom of whether there are any violations of federal law contained within the NSA program,” he said: “This, coupled with DoJ dropping their investigations… means that right now nobody within the federal government is investigating the program.” Many questions remain unanswered, Douglas said: “It’s very difficult to know exactly what’s taking place here. The president has made real broad statements and you have two of the three phone companies named making very broad denials. But within those denials there’s still wiggle room.”
Comr. Copps Tues. repeated calls for a probe. Copps said during a media breakfast that the FCC still doesn’t fully know the extent of any violations of Sec. 222. “We need to find out what has happened,” Copps said: “I understand the necessity for strong, credible homeland security capabilities. I've always supported that and will continue to support that. But I also understand that we have a responsibility on privacy.”
Rep. Schakowsky asked AT&T whether it shared phone records and Internet messages with the NSA, according to a letter she sent Tues. to AT&T Chmn. Ed Whitacre. Schakowsky also told Whitacre she was concerned that AT&T may have played a role in removing a bill that would have banned pretexting -- assuming an identity to obtain information illegally -- from the House floor because of “questionable activities in which your company may have been involved.”