Washington, DC, May 16, 2006 --  

Last week's allegations that major American phone companies have voluntarily turned over massive call record databases to the federal government have raised an uproar reminiscent of earlier domestic espionage scandals.¹ Most commentary on the issue has either expressed outrage at the government actions or given a knee-jerk defense of domestic espionage as a means of fighting terrorism.

But given that QWest communications reportedly refused to hand over records while other companies voluntarily did so, this is not a case of the government unlawfully searching or seizing information. Corporate betrayal of customers, in this case, is the primary issue rather than government misconduct.

To be sure, the records released by the phone companies are potentially very damaging to a great many Americans. While the records did not include the contents of phone conversations, they did include the times, durations, and the initiating and receiving phone numbers. Such information is commonly used in criminal proceedings because it can be highly incriminating. Phone records can establish a relationship between people, shatter or confirm alibis, and connect people with crimes at specific times.

Most law abiding citizens have little reason for concern that their phone records are in the hands of the government. Unfortunately, not everybody is so squeaky clean. Millions of Americans have reason to be nervous about having made potentially incriminating phone calls -- calls to prostitutes, marijuana dealers, illegal immigrant housekeepers -- even calls to illegal cable hookup guys. By using phone records, the government could link anybody known to sell illicit goods to their customers.

It is fears of exactly this kind of misuse that led President Bush to forcefully declare that this is not how the information is being used. "We are not mining or trolling through the personal lives of innocent Americans," Bush said.² But whether the president realizes it or not, this is exactly what the National Security Agency is doing with the call data.

At a homeland security conference in Boston last spring, I saw several companies peddling powerful data mining software specifically designed to seek out patterns in massive databases of telephone records. The programs find call patterns consistent with various kinds of illicit group behavior. The NSA and other agencies are not merely looking to see who called suspected and known terrorists -- it is using such software to try to find unknown groups that are already out there.

And the trolling may not just be about terrorism. To the extent that such data mining software can be used to identify patterns consistent with terrorist networks, it can also be used to identify patterns of drug dealing, prostitution, and other illicit activity. Without legal restrictions, the only thing that prevents the government from doing so is the whim of the executive branch.

It is this potential for abuse that is at the core of the reason such records should never have been released to the government. There are two ways such a transfer could have been stopped. The first is a legal obstacle -- a law passed by Congress making such a transfer against the law. The second means of stopping a transfer is a company decision. Telecommunications companies are service providers hired by their customers, and any honorable company looks out for the interests of its customers.

This is exactly what happened a few years ago during the battles over subpoenaed internet records by the recorded music industry. The Recording Industry Association of America sent thousands of subpoenas to internet service providers, demanding similar records of internet connections. In this case, however, many internet service providers looked out for the best interests of their customers, refusing to comply and challenging the subpoenas. One of these challenges, by telecom giant Verizon, led to the subpoenas being ruled illegal in federal court -- a major victory for their customers.³

Tragically, Verizon did not behave so admirably in the more recent case. The company, along with AT&T and BellSouth, allegedly chose to betray its customers by giving their phone records to the government. Verizon and BellSouth deny (implausibly) that they were ever even approached by the NSA.⁴ Of the Baby Bells, only QWest looked out for the interests of its customers by denying the government's request. To the extent that consumers have a choice in their telecommunications provider, and provided the reports prove true, consumers should punish Verizon, AT&T and BellSouth for betraying them.

Notes:

1. USA Today, NSA Has Massive Database of Americans' Phone Calls, May 11, 2006

2. CNN.com, Bush: We're Not Trolling Your Personal Life, May 11, 2006

3. CNET News, Court: RIAA Lawsuit Strategy Illegal, December 19, 2003

4. ABC News, Verizon: NSA Didn't Ask Us For Records, May 16, 2006