Verizon Turned Over Customer Records Without Court Order

By Jeralyn, Section War on Terror
Posted on Tue Oct 16, 2007 at 07:06:00 AM EST
Tags: NSA wiretapping (all tags)

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The phone companies have responded to the request by the House Committee on Energy and Commerce for information about their participation in the NSA warrantless wiretapping program.

Verizon admits it supplied hundreds of its customers' records to the agency without a court order.

Verizon also disclosed that the FBI, using administrative subpoenas, sought information identifying not just a person making a call, but all the people that customer called, as well as the people those people called. Verizon does not keep data on this "two-generation community of interest" for customers, but the request highlights the broad reach of the government's quest for data.

More....

....From January 2005 to September 2007, Verizon provided data to federal authorities on an emergency basis 720 times, it said in the letter. The records included Internet protocol addresses as well as phone data. In that period, Verizon turned over information a total of 94,000 times to federal authorities armed with a subpoena or court order, the letter said. The information was used for a range of criminal investigations, including kidnapping and child-predator cases and counter-terrorism investigations.

Verizon's excuse: It's not its job to second guess the Government.

Turns out, the FBI wanted even more information than Verizon was able to provide.

Verizon said it had received FBI administrative subpoenas, called national security letters, requesting data that would "identify a calling circle" for subscribers' telephone numbers, including people contacted by the people contacted by the subscriber. Verizon said it does not keep such information.

The Committee's press release is here.

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Verizon Turned Over Customer Records Without Court Order | 14 comments (14 topical)

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moral turpitude (none / 0) (#1)
by Sumner on Tue Oct 16, 2007 at 12:51:21 AM EST

But this isn't the whole story. The bigger picture is to be had in discovery, which is why government is beating a hasty path to ram immunity through for the Telcoms and ISPs, before the entire scope of their Surveillance Society is made known.

The various Telcoms' and ISPs' 30-pieces-of-silver that they have garnered to betray their own customers is said to run into large money. Can it be that Inpectors General in Intelligence and at Justice are merely there largely for show and that they really are expected not to uncover this perfidy?

Slashdot reports on the tip of Comcast's own involvement in this sad state of affairs.

Can we possibly entreat the presidential candidates to stand opposed to this nefarious flimflam and bum's rush for Telcom immunity? How about statements-of-concern from the Inspectors General over the subterfuge of fast-tracking what amounts to a Telcom Immunity-gate?

What with expedited hearings to rush through confirmation of an attorney general that some here have already surmised is to do cleanup for his predecessors, we need to be especially hypervigilant over the coming days.

Perhaps in light of the rush, Rep. Edward J. Markey (D-Mass.), Chairman John D. Dingell (D-Mich.), and Rep. Bart Stupak (D-Mich.) are said to be holding hearings the very day that the confirmation hearings for attorney general start and also on Halloween. Can we get them to ask for a halt to the rush-to-immunity for the very players they are set to investigate?

With all of the dirty tricks and lies and cover-ups compounding the underlying offenses, why cannot we call this by what it is: a vast crime of moral turpitude?

Gee... (none / 0) (#2)
by Strick on Tue Oct 16, 2007 at 07:25:13 AM EST

Verizon also disclosed that the FBI, using administrative subpoenas...

I realize a recent court ruling might apply now, but until then, wouldn't it be responsible for citizens and businesses to assume that a subpoena regardless of the details has the full backing of the force of law?

These days business leaders go to jail for failing to comply with subpoenas. You expect them to pick and choose which subpoenas they comply with regardless of the risk to themselves and their business? Really? I don't think you're putting yourself in their place in this one.

If you want to fault the people issuing this type of subpoena, I'll understand. But ordinary people (and even business types are ordinary people) complying with them on the advise of their attorneys? Isn't that a little extreme?

It might be "reasonable" (none / 0) (#3)
by Deconstructionist on Tue Oct 16, 2007 at 07:39:32 AM EST

for most people and businesses but Verizon is a major corporation with a huge legal department. Now, the corporation or officers might rely on an advice of counsel defense but its debatable at best.

Any lawyer should know that a motion to quash a subpoena can be filed and one is only in contempt if after a denial by the court of the motion to quash the demanded documents are withheld.


: Remember Enron? (none / 0) (#4)
by Strick on Tue Oct 16, 2007 at 08:32:33 AM EST

Arthur Andersen was a large corporation (a partnership technically) with lots of attorneys, very experienced in litigation. They ceased to exist and partners went to jail because one attorney instructed one service team to comply with their then legal document retention policy and destroy workpapers more than 3 years old (as they had for the past 30 years to my specific knowledge) prior to any subpoena being issued.
That's what they were convicted of in that court down in Houston, that and that alone.
Since then those of us in business respond instantly to even the potential for a subpoena. Our attorneys advise us as to what is and isn't covered by a given subpoena, but they insist we comply. Rigorously. No ifs, ands or buts. It's our personal butts in a sling if we don't.
Verizon complies with requests from law enforcement all the time. Hell, don't you remember Lenny on Law and Order saying he'll pull the "lugs", someone's telephone records, on some case? Never even mentioned getting a subpoena, did he. He didn't need one. And in Manhatten, it would be Verizon providing him the records. If that's the way things work in normal situtations, why wouldn't Verizon respond the same way when they actually got what they believed was a legal subpoena?
This headline is pure misleading spin designed to create unjustified outrage. The headline should be that Verizon complied with what they reasonably thought was the law.
But, of course, "major corporation obeys law" wouldn't be much of a story, would it? And it wouldn't fit this particular narrative.
At worst, Verizon didn't commit any serious breach of trust here. They simply took the legal, safe course of action.

Big difference (none / 0) (#5)
by Deconstructionist on Tue Oct 16, 2007 at 08:41:26 AM EST

between unilaterally destroying documents and using a recognized legal procedure to receive court approval.

I find it impossible to believe that ANY attorney would advise clients to comply with all subpoenas and say the only issue to consider is which documewnts are within the scope of the demand.

The obvious issue to any attorney is which documents or records within the scope of the subpoena might be subject to state or federal privacy statutes which impose a duty on third-party custodians of those records not to disclose absent a court order to do so.

If your attorney is advising yo as you claim, you need a new attorney pronto.

So help me understand... (none / 0) (#6)
by Strick on Tue Oct 16, 2007 at 09:28:25 AM EST

From the FCC website:

Telephone companies may use, disclose, or permit access to your customer information in these circumstances: (1) as required by law; (2) with your approval; and (3) in providing the service from which the customer information is derived.

"As required by law". I admit I have a dim understanding of the law. Please help me.

You believe that, even before the issue was settled in court, this "required by law" was limited solely to the issuance of a court order, not just any subpoena a business receives from a Federal law enforcement agency? Isn't that a matter of legal opinion on which reasonable legal experts could and did disagree?

Since a subpoena would be valid from one source, you say we're supposed to react differently to a subpoena for the same information from a different but apparently legal source? Is that splitting hairs, especially before the issue of administrative subpoenas was settled in court? A business should absorb the risk of failing to comply with a subpoena that they could reasonably believe was the law, especially on a security matter shortly after 9/11?

And, as this article would have us believe, Verizon is unredeemably evil for doing complying with what appears to be the law? OK.

(Yes, I know Quest didn't comply. But then, the dirty little secret in the industry is that Quest's business systems suck so bad (IMHO), they probably couldn't comply.)


: Filing a motion to quash (none / 0) (#7)
by Deconstructionist on Tue Oct 16, 2007 at 10:09:48 AM EST

is not failing to comply; it's seeking guidance from the court as to the legality of the subpoena. The administrative subpoenas and "national security letters" authorized in the Patriot Act with respect to international terrorism were allowed only in certain limited circumstances and the main thrust of the argument was that the AG was abusing the power to bypass the courts and obtain warrants as nornally required in all other contexts. In that very narrow area I agree reasonable minds could have and did differ.
You made a much broader claim that counsel for corporations advise that all subpoenas should be examined only to determine scope and not to determine whether anything demanded is protected by statute or privilege. I didn't label anyone, even the DOJ, evil or posit any wild conspiracy theories. I merely noted that the companies involved did not avail themseleves of known means to seek judicial clarification of their duties vis a vis both the government and the customers who had private information stored by the companies.
The point remains that if your lawyer is advising you that in response to any subpoena to turn over akk demanded records unquestioningly without considering whether they may be covered by state or federal privacy acts (there are others besides ECPA) on the sole basis of a subpoena he is giving you incredibly bad advice.

: Sigh... (none / 0) (#8)
by Strick on Tue Oct 16, 2007 at 10:10:38 AM EST

Decontructionist, you've been gracious on this and I regret taking the tack I did. Please try to see this from the business's POV for a moment.
In the aftermath of 9/11, the FBI shows up with an apparently valid subpoena for phone records. Court order, smort order, they comply with subpoenas for this information all the time. For all I know, they even received legal advice (perhaps with caveats, attorneys CYA, too, as you know) to comply. Maybe their attorneys aren't as good as you or Jeralyn.
Can you see why reasonable people acting in good faith would comply believing they were doing the right thing in turning this data over?
Not everyone is dogmatic about this sort of thing. Most just do the best they know how.

I know people make mistakes in good faith (none / 0) (#9)
by Deconstructionist on Tue Oct 16, 2007 at 10:40:16 AM EST

but they are still mistakes.

For example, I once advised a doctor who received a subpoena from defense counsel in a personal injury case pertaining to a patient he had treated. His staff did not think twice about copying the records and providing them to the defense counsel without receiving a release from the patient because subpoenas sure look "official." I don't think there was any lack of "good faith" but it was in direct violation of state statute (this was before HIPAA) and although there was not a case directly on point at the time, in my opinion, also violative of the common law doctor-patient privilege.

Evidently, the doctor had done it numerous times before with no repercussions, but this time he was threatened with suit. I advised him that I thought he had violated the law and was liable and told him to immediately notify his insurance carrier who even if not obligated to indemnify would have a duty to defend. The carrier provided counsel and decided the easiest thing to do was reach a quick settlement for a nominal sum. After that the doctor made sure he and his staff understood the law.

Another example might be if the prosecution in a doc shopping case declined to seek or were refused a search warrant and served a subpoena on doctors seeking records it hoped would tend to prove the defendant was illegally obtaining prescriptions. Simply complying with the subpoena would be wrong. To CYA the doctors should file motions to quash citing applicable statute and the d-p privilege. Then if the court orders disclosure the doctor has the defense he had no recourse but to comply with a lawful court order.

Fair Enough (none / 0) (#10)
by Strick on Tue Oct 16, 2007 at 12:46:42 PM EST

But surely you see that the article above is designed to elicit the response in the first comment in this chain, don't you? "Moral turpitude"? No other explanation?

Don't get me wrong, I know Verizon well. They are a gigantic, ruthless business and there are many areas where I wouldn't trust them as far as I can throw a network switch. What I can't fathom is why anyone would think they sit around looking for nefarious ways to violate their customer's privacy by giving their data to the government as this seems to suggest. It's just too far fetched.

Instead I remember that one of their major facilities was destroyed on 9/11 and their people died, too. Everyone in the organization felt the impact. If the FBI came to me with a subpoena looking for data under those circumstances, I know how I'd be motivated to respond, at least barring absolute advice from my attorneys to the contrary.

And, again, at least to a layperson, it seems that there were differences of opinion on the legality of these subpoenas and how to respond to them, so it's hard to know what kind of advice their attorneys gave them. Call it a mistake now that the courts have ruled on administrative subpoenas, but before...

BTW, A Last Word (none / 0) (#11)
by Strick on Tue Oct 16, 2007 at 01:38:57 PM EST

You may have seen in other places that Comcast's Law Enforcement Handbook has been leaked across the internet. Got curious and had to look at their policy on voice communications. Here is the relevant part:

Grand Jury, Trial or Administrative Subpoena
Law enforcement agencies can receive subscriber identification including:

Subscriber's name
Subscriber's address
Length of service including start date
Subscriber's telephone number, instrument number or other subscriber number or identity, including a temporarily assigned network address
Subscriber's social security number (if requested)
Means and source of payment for such service (including any credit card or bank account number)
Call Detail (records of local and long distance connections)

The handbook's dated September, 2007. Looks like if the FBI showed up at Comcast with an administrative subpoena rather than a court order today, they'd still get the data.

My apologies for commenting so much on this post.


why bother? (none / 0) (#12)
by Sumner on Tue Oct 16, 2007 at 02:09:04 PM EST

sheesh

: Mass Moral Turpitude! (none / 0) (#13)
by Sumner on Tue Oct 16, 2007 at 02:49:15 PM EST

Come on. Wake up if you're going to, instead of brass minimalization. Instead of apologetics.
There were early boasts that even Windows Vista was primarily designed for government surveillance.

Who is right? (none / 0) (#14)
by eric on Tue Oct 16, 2007 at 03:55:43 PM EST

I find it hilarious to read AT&T's detailed letter/legal brief in the context of Verizon's response.

Either Verizon just turned over a boatload of information it shouldn't have, or AT&T is full of it.