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The connection between NSA wiretapping and telephone industry concentration

by Andy Oram
Jan. 5, 2006

I have reported in detail, in a companion blog, about an historic public forum on NSA wiretapping. Here I'll report on one technology-related aspect of particular interest to me: the collusion of the telephone companies, which has not been played up in the press.

All the warrantless wiretapping we've recently heard about required help from the telephone companies and Internet service providers. These companies knew they were not only aiding the government in breaking the law, but were themselves violating terms of service for their customers--and in the case of telephone companies, also breaking the law. One law mentioned at the public form (and submitted years ago by the forum's moderator, Congressman Ed Markey) forbids cell phone companies from revealing the location of cell phone users--except with a court warrant.

In fact, the NSA wiretapping scandal represents one of the largest conspiracies in recent years: a conspiracy between telephone companies and the government to defraud Americans out of our Fourth Amendment rights.

Pertaining to this is the issue of industry concentration--the death of small phone companies and the mergers of larger ones into behemoths--which was also one of the goals of the Bush administration, pursued with determination by Michael Powell as FCC chair. Provisions for competition set up in the Telecom Act of 1996, and enforced by relatively even-handed regulations passed by earlier FCCs, were systematically weakened and discarded under Bush. (For some history, see an earlier blog of mine.)

Admittedly, it's hard for any company to buck a demand from law enforcement. The PATRIOT Act's secrecy provisions (when the FBI approaches you, you can't even publicize the very fact that they have done so) leaves the impression that you'll be prosecuted for going public with government misbehavior, and thus contributes to the growing unaccountability of government. A few Internet service providers have done challenged illegal wiretaps, but not enough to establish the pattern we now see in the wiretap scandal. Overwhelmingly, the phone companies and ISPs just went along.

One might argue that the pressure would have been even stronger if ISPs and phone companies were smaller, but size obviously hasn't helped them put up any resistance. Believe me, if we had an industry of scrappy Mom-and-Pop providers like in the 80s and 90s, word about this civil liberties horror would have come out sooner.

Andy Oram is an editor for O'Reilly Media, specializing in Linux and free software books, and a member of Computer Professionals for Social Responsibility. His web site is www.praxagora.com/andyo.

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