They Spy, With Their Little Minds...

...something that begins with us. As in, the USA in toto.

That's right: they see us, the People of The United States. And in order to form a more perfect union of government control of, and power over, the people, the President authorized the National Security Agency (NSA) to undertake what can only be described as a breathtaking and unprecedented operation involving domestic intelligence-gathering that targeted the telephone records of millions upon millions of unsuspecting American citizens.

Invading our privacy as never before. Illegally. Unconstitutionally.

And then, when called to the mat on this shocking affront to our rights, hiding behind that tired old "Gotta protect everyone from the terr'ists" line, and invoking (yet again) 9/11. In fact, when speaking about the domestic spying, 9/11 punctuated the first sentence out of the President's mouth. The only surprise is that we haven't been subjected to an Orange Alert this week. Yet.

There's plenty of blame to go around, and while many are calling for a Congressional investigation of the White House and all who were party to this, some are also rightly leveling criticism at the telecommunications giants who, when asked by the NSA, merrily handed over their customers' records in direct violation of Federal Law. From Think Progress:

This morning, USA Today reported that three telecommunications companies – AT&T, Verizon and BellSouth – provided “phone call records of tens of millions of Americans” to the National Security Agency. Such conduct appears to be illegal and could make the telco firms liable for tens of billions of dollars. Here’s why:

1. It violates the Stored Communications Act. The Stored Communications Act, Section 2703(c), provides exactly five exceptions that would permit a phone company to disclose to the government the list of calls to or from a subscriber: (i) a warrant; (ii) a court order; (iii) the customer’s consent; (iv) for telemarketing enforcement; or (v) by “administrative subpoena.” The first four clearly don’t apply. As for administrative subpoenas, where a government agency asks for records without court approval, there is a simple answer – the NSA has no administrative subpoena authority, and it is the NSA that reportedly got the phone records.

2. The penalty for violating the Stored Communications Act is $1000 per individual violation. Section 2707 of the Stored Communications Act gives a private right of action to any telephone customer “aggrieved by any violation.” If the phone company acted with a “knowing or intentional state of mind,” then the customer wins actual harm, attorney’s fees, and “in no case shall a person entitled to recover receive less than the sum of $1,000.”

[...]

3. The Foreign Intelligence Surveillance Act doesn’t get the telcos off the hook. According to USA Today, the NSA did not go to the FISA court to get a court order. And Qwest is quoted as saying that the Attorney General would not certify that the request was lawful under FISA. So FISA provides no defense for the phone companies, either.


Now, you might be saying "Oh, this is not that big of a deal...if you drive a car, use a credit card, or carry a mortgage, there are already numerous databases who know more about you than you'd care to think. So what?" And if you are saying that, I submit that there is an enormous difference between knowingly giving information to a bank in order to borrow money, or to the DMV in order to procure a driver's license, and making calls you reasonably assume to be private, from your own telephone—the service for which you pay and the records of which you also reasonably assume, and are contractually assured by said service, to be private—all the while unwittingly subjecting your calling patterns (and who knows what other details) to the scrutiny of the NSA Big Brother.

The telecom giants should be held liable, to the tune of tens of billions of dollars. And Congress must begin investigations immediately.

It is a big deal. And it isn't tin-foil-hattish to be very, very concerned. Even conservative politicians and pundits like Joe Scarborough are speaking out against this egregious violation of the privacy and civil liberties of the American citizenry; indeed, both The New York Times and the The Washington Post are already weighing in.

(Hat-tip to blogenfreude for the Think Progress piece.)

(Crossposted at The Last Duchess.)

UPDATE: Think Progress answers some questions and maintains the telecoms are still liable. (Thanks again, bf)

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