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Couldn't Verizon Have Just Said No to NSA? Couldn't Verizon Have Just Said No to NSA?

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Couldn't Verizon Have Just Said No to NSA?

(U.S. Government)

photo of Brian Fung
June 6, 2013

An internal memo from Verizon to its employees has leaked to the Web, revealing that the company justified its cooperation with the National Security Agency based on the terms of the government's court order.

Verizon's executive vice president and general counsel, Randy Milch, didn't confirm whether documents obtained by The Guardian were legitimate. But he did say that if Verizon did receive such an order, it would be "required" to comply.

Here's the thing. The whole "required" business is a bit of a technicality. Verizon is "required" to hand over cell-phone metadata only if it doesn't choose its other option, which is to fight the order in court. This option — what Marc Rotenberg, executive director of the Electronic Privacy Information Center, calls "adversarial proceedings" —  is a form of legal recourse that anyone who's served with a subpoena has access to.
If Verizon had objections to the NSA's request for user data, it could have raised them. Maybe the company did, maybe it didn't; every subpoena that comes through the Foreign Intelligence Surveillance Court also contains a gag order prohibiting the recipient from discussing the affair. That means even if Verizon had tried to challenge the request, we still wouldn't know. Verizon could be dying to tell us it tried to resist.
Is that likely? Probably not. The surveillance program, according to the very senators in Congress who approved it, stretches back to 2006. If Verizon had fought it, it must have been a short battle. 

Verizon also was the only company to get zero stars on the Electronic Frontier Foundation's ranking of companies according to their privacy record.


Nor does Verizon have much incentive to push back. Under the Foreign Intelligence Surveillance Act, companies that cooperate with government investigations get liability protection for doing so. Handing over metadata that the feds request for "national security" purposes gives companies vital cover.

"You're pretty much relying on the counsel of the company receiving the order to raise objections if there are any," said Rotenberg, who added that he was shocked when he read the court order. "I helped write the Electronic Communications Privacy Act," he added, "and I never imagined the FISA court" would go to such lengths.

A Verizon spokesperson declined to comment.

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