BellSouth and Verizon Attack USA Today Story

May 16, 2006. BellSouth and Verizon released written statements that attack the accuracy of the May 11 article in USA Today titled "NSA has massive database of Americans' phone calls". BellSouth and Verizon both released carefully worded but vague statements that if read literally could be construed as not denying the key assertion of fact contained in the USA Today article -- that they provided phone call records to the NSA.

For example, BellSouth denies providing "customer calling records", while USA Today wrote that it provided "phone call records".

However, Jeff Batcher, a spokesman for BellSouth, told TLJ that "we have never been asked by the NSA, and never provided the NSA, any information whatsoever, period."

AT&T, the third company mentioned in the article, has issued no statement. President Bush was asked about the NSA program at a news conference on May 16. He did not deny any thing in the USA Today article.

BellSouth Statement. Late on May 15, 2006, after BellSouth had three working days, and two weekend days, to prepare a response, it issued a release with the following short three paragraph statement.

"There has been much speculation in the last several days about the role that BellSouth may have played in efforts by the National Security Agency (NSA) and other governmental agencies to keep our nation safe."

"As a result of media reports that BellSouth provided massive amounts of customer calling information under a contract with the NSA, the Company conducted an internal review to determine the facts. Based on our review to date, we have confirmed no such contract exists and we have not provided bulk customer calling records to the NSA."

"BellSouth has built a successful business because of the trust that our customers have placed with us. We will continue to take our obligations to our customers seriously."

The second paragraph of this statement addresses the USA Today article.

BellSouth uses the phrases "customer calling information" and "customer calling records". In contrast, the USA Today article uses the phrases "phone call records" and "domestic call records". BellSouth associates the word "customer" with the word "record". There is a difference between what USA Today wrote, and what BellSouth now denies.

BellSouth portrays the USA Today article as asserting that BellSouth provided customer identifying information combined with the customer's call information. In fact, the USA Today article only asserts that BellSouth turned over call information. Moreover, the USA Today article points out the difference. It states that "Customers' names, street addresses and other personal information are not being handed over as part of NSA's domestic program". The article added that "But the phone numbers the NSA collects can easily be cross-checked with other databases to obtain that information."

Thus, the BellSouth statement denies something that USA Today did not assert, and leaves undenied that which USA Today did actually assert.

Of course, it is another question whether BellSouth, in writing its statement, understood there to be a difference between "customer calling records" and "phone call records", and intended its statement to constitute a non-denial.

TLJ asked Jeff Batcher, who wrote the statement of BellSouth, whether BellSouth only denies providing "customer calling records", thus leaving open the question of whether it provided "phone call records". He said that this question "reads way too much into" the BellSouth statement. He added that the question of whether BellSouth has provided "phone call records", as opposed to "customer calling records", is "moot", because BellSouth has not provided the NSA with any records.

The distinction between "customer calling records" and "phone call records" may also have significance in the context of 47 U.S.C. § 222. This is the section of the Communications Act, titled "Privacy of customer information", that limits the disclosure by a "telecommunications carrier" of "customer proprietary network information", or CPNI. There is no law enforcement of intelligence exception in this section.

The statute defines CPNI as "(A) information that relates to the quantity, technical configuration, type, destination, location, and amount of use of a telecommunications service subscribed to by any customer of a telecommunications carrier, and that is made available to the carrier by the customer solely by virtue of the carrier-customer relationship; and (B) information contained in the bills pertaining to telephone exchange service or telephone toll service received by a customer of a carrier".

That is, the statute regulates customer information, but perhaps not phone call information that is not associated with information that identifies the customers who made the phone calls. If BellSouth has provided "phone call records" to the NSA, as asserted by USA Today, then BellSouth and the NSA may have reached the legal conclusion that since these are merely "phone call records" and not customer phone call records, then the general prohibition of Section 222 is inapplicable, and BellSouth is not violating the law.

BellSouth also denies in the second paragraph of its statement that a contract exists between BellSouth and NSA. The story does state that "three telecommunications companies are working under contract with the NSA". But, BellSouth ties the phrase "customer calling information" to "contract". USA Today never asserted that there was a contract to provide "customer calling information". It asserted a contract to provide call records.

Since BellSouth denies that it provided "customer calling information", it is trivial to also deny a contract to provide customer calling information. Moreover, whether or not a contract exists (or existed)  is not one of the key assertions of the USA Today article. Nor does it have any implications for the privacy interests of people who use telephones.

Verizon Statement. On May 16, Verizon issued a release. It contains a longer six paragraph statement that is set out in full below.

"As the President has made clear, the NSA program he acknowledged authorizing against al-Qaeda is highly-classified. Verizon cannot and will not comment on the program. Verizon cannot and will not confirm or deny whether it has any relationship to it."

"That said, media reports made claims about Verizon that are simply false."

"One of the most glaring and repeated falsehoods in the media reporting is the assertion that, in the aftermath of the 9/11 attacks, Verizon was approached by NSA and entered into an arrangement to provide the NSA with data from its customers' domestic calls."

"This is false. From the time of the 9/11 attacks until just four months ago, Verizon had three major businesses -- its wireline phone business, its wireless company and its directory publishing business. It also had its own Internet Service Provider and long-distance businesses. Contrary to the media reports, Verizon was not asked by NSA to provide, nor did Verizon provide, customer phone records from any of these businesses, or any call data from those records. None of these companies -- wireless or wireline -- provided customer records or call data."

"Another error is the claim that data on local calls is being turned over to NSA and that simple ``calls across town´´ are being ``tracked.´´ In fact, phone companies do not even make records of local calls in most cases because the vast majority of customers are not billed per call for local calls. In any event, the claim is just wrong. As stated above, Verizon's wireless and wireline companies did not provide to NSA customer records or call data, local or otherwise."

"Again, Verizon cannot and will not confirm or deny whether it has any relationship to the classified NSA program. Verizon always stands ready, however, to help protect the country from terrorist attack. We owe this duty to our fellow citizens. We also have a duty, that we have always fulfilled, to protect the privacy of our customers. The two are not in conflict. When asked for help, we will always make sure that any assistance is authorized by law and that our customers’ privacy is safeguarded."

Verizon's six paragraph statement is longer than BellSouth's, but employs the same approach. It restates the assertions of USA Today, with variations, and then denies its restatements.

Verizon uses the phrases "customers' domestic calls", "customer phone records", and "customer records or call data". Like BellSouth, it adds the word "customer".  USA Today wrote about "phone call records", without the word "customer".

Verizon does at one point deny that it provided "any call data", but it then immediately follows this with the phrase "from those records", which is a reference back to "customer phone records". This leaves open the possibility that it provided "call data" that it retrieved from a database other that "customer phone records".

Which Carriers? USA Today's article asserted that AT&T, BellSouth and Verizon provided data to the NSA, and that Qwest did not. There has been considerable merger activity since September 11, 2001, and neither the USA Today article nor the BellSouth and Verizon statements are clear as to which entities they address.

AT&T and SBC recently merged. USA Today is not clear as to the involvement, if any, of SBC in the NSA program that it reports. And, AT&T has issued no statement.

AT&T has been a major provider of long distance and international services. International calls might be the calls in which the NSA has the greatest interest.

Verizon recently acquired MCI, which was previously known as WorldCom. The USA Today article is not specific on this point. Verizon's statement is vague, but could be construed to imply that it is the Verizon entity, as it existed prior to its acquisition of MCI, that issues the denial, thus leaving unanswered the question of MCI's relationship with the NSA. MCI provided services that are likely of particular interest to the NSA.