Involvement in NSA Spying Becomes a Factor in Proposed Merger of Telecom Giants

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NEW YORK -- The American Civil Liberties Union said today that it has filed formal comments reminding the Federal Communications Commission of allegations that AT&T and BellSouth illegally provided customer information to the National Security Agency, and pointing out that under existing law the FCC cannot permit the pending merger between those two companies to proceed without investigating the merit of those allegations.

"As you know, a May 11th article in USA Today alleged that at least three telecommunications companies, AT&T, BellSouth and Verizon, cooperated with the NSA in an effort to collect calling information and call patterns on every American," the ACLU said in a formal filing signed by ACLU Executive Director Anthony D. Romero and other officials. "These actions seem to be in direct violation of statutory guarantees on the privacy of telephone calling information."

The ACLU also reminded FCC officials that the agency "has a statutory duty as part of its review of the AT&T-BellSouth merger application to perform a full investigation of the claims reported in USA Today."

The letter was sent late yesterday, shortly before the midnight deadline for comments. The Commission will consider public comments before acting on the matter.

The ACLU’s action marked the first time that the companies’ alleged involvement in NSA spying has formally become an issue in the proposed merger between the two telecom giants. As part of its current review of the proposed merger, the FCC is legally required to review the conduct and "character qualifications" of the applicants. All violations of communications laws and regulations are, according to the FCC’s own findings, relevant to that review.

BellSouth has publicly and emphatically denied participation in the NSA program, while AT&T has refused to confirm or deny its participation. In its filing, the ACLU said that if BellSouth’s denials are true, then "it would be a cruel irony if BellSouth had not participated in the program but as a result of this merger, BellSouth customers became unwilling surveillance targets."

Previously, in separate letters, the ACLU, Congressman Ed Markey of Massachusetts, and the Electronic Privacy Information Center all asked the FCC to investigate the spying allegations on behalf of consumers. In a May 22 reply to Rep. Markey, FCC chairman Kevin J. Martin wrote that "the classified nature of the NSA’s activities makes us unable to investigate the alleged violations."

"We are not asking the FCC to investigate the NSA," said Barry Steinhardt, Director of the ACLU’s Technology and Liberty Project. "We are simply asking the FCC to do its job and determine what the telecom companies have done in the past and intend to do in the future. There is absolutely no reason they can’t find out whether the law was broken without revealing legitimate state secrets."

Steinhardt added: "We hope the FCC will come to its senses and realize that it need not, and cannot, let simple assertions of secrecy block it from carrying out its duty to the public, either to protect privacy or to review mergers."

A copy of the ACLU’s filing with the FCC is available online at www.aclu.org/privacy/spying/25785res20060606.html