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Verizon Claims Free Speech Over NSA Wiretapping

Posted by Zonk on from the corporations-shold-have-the-right-to-have-babies dept.

xvx writes "Verizon is claiming that they have the right to hand over customer information to the US government under the First Amendment. 'Essentially, the argument is that turning over truthful information to the government is free speech, and the EFF and ACLU can't do anything about it. In fact, Verizon basically argues that the entire lawsuit is a giant SLAPP (Strategic Lawsuit Against Public Participation) suit, and that the case is an attempt to deter the company from exercising its First Amendment right to turn over customer calling information to government security services.'"

26 of 391 comments (clear)

  1. That's an interesting take on it. by wiredog · · Score: 5, Interesting

    Since Free Speech is enshrined directly in the Constitution while Privacy is not (it's an indirect right. See Roe Vs Wade for more info), they could have a good (legally, not morally) argument.

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    1. Re:That's an interesting take on it. by Bagheera · · Score: 3, Interesting

      As I understand it, Commercial Speech is not protected under the 1st amendment. Customer records would certainly fall under that definition. The reality is, Verizon's clutching at straws to try and make it look like they're just exercising their rights by divulging customer information for no good reason.

      --
      Never attribute to malice what can as easily be the result of incompetence...
    2. Re:That's an interesting take on it. by hey! · · Score: 5, Interesting

      It's also well established that commercial speech can be regulated more than individual speech. An in this case it is indeed by ECPA and other statutes limiting disclosure of information about private communications.

      Generally, any facts which come into your hands by legitimate means are yours to publish. The exceptions are when you have a special duty of privacy (e.g. attorneys and physicians), information that you are contractually obligated to keep private, or commercial information that is regulated.

      It's clear to me that Verizon doesn't have much chance with this line of argument, the new Supreme Court being something of a wild card. If they win, it will have an interesting side effect. All communications carried by Verizon could potentially be claimed by them as their property to dispose of as they wish. They could sell the content of your text messages or emails, or a list of who and by whom you are called.

      It's a pretty far out argument, but as I say they may find friends on the newly radicalized Supreme Court.

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    3. Re:That's an interesting take on it. by LehiNephi · · Score: 3, Interesting

      It really makes me wonder how much pressure Verizon finds itself under. We know the public and legal pressure they face in the courts as a result of handing over that information, but to make a statement like this certainly gives the appearance of "grasping at straws," as you say. That means that there's an awful lot of pressure coming from the other side. And since handing customer information over to the government is not (in and of itself) in Verizon's own interest, there must be some serious pressure coming from somewhere.

      I hate to be a conspiracy theorist, but I think there's more than meets the eye here.

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    4. Re:That's an interesting take on it. by russ1337 · · Score: 2, Interesting

      Generally, any facts which come into your hands by legitimate means are yours to publish. The exceptions are when you have a special duty of privacy (e.g. attorneys and physicians), information that you are contractually obligated to keep private, or commercial information that is regulated.

      I would have thought Verison had a privacy statement along the lines of We'll do all we can to keep your information private... etc but might give statistical information blah.. or to our advertisers... and partner companies ".

      I don't understand how they can legally pass personal information on to a third party that is not expressly called out in the agreement.
    5. Re:That's an interesting take on it. by Zapperlink · · Score: 2, Interesting

      I say that if they are so bold to push this information then they wouldn't have problems formally publishing their list of contacts, or better yet, I'm sure one of them is a customer somewhere... I am sure since they are such noble people they would have no fear of their private corporate information being shared? What if their grocery store started giving out information on the food they buy? What if we got to see what blockbuster movies they liked to rent. Even better, what if we could simply list the websites they have visited in the past year at home. Too bad those corporate clowns can't see this, because they know the reality that one single disgruntled employee with their name could drop these things to the internet, and watch them flop around about privacy.

    6. Re:That's an interesting take on it. by trianglman · · Score: 4, Interesting

      Actually, it has been well documented, in numerous Supreme Court rulings, that for there to be free speech, there must be the ability to speak privately without fear of being recorded. It is a mixture of the First and Fourth Amendments that allows things like wiretapping only after court review.

      --
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    7. Re: That's an interesting take on it. by moeinvt · · Score: 2, Interesting

      Amendment I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

      Therefore, Verizon may not be sued by its customers for turning over their private data to the government.

      ?????????

    8. Re:That's an interesting take on it. by VWJedi · · Score: 2, Interesting

      Imagine if you will, instantly losing all privacy rights toward any private actor. Your doctor... your lawyer... your accountant... all 3 credit bureaus... it goes on.

      Even if they rule in favor of Verizon but state that this applies to telecommunications companies only, you'll still have serious problems talking with your doctor / lawyer / accountant. If they are bound by law not to disclose your information and telephone conversations do not provide "an expectation of privacy", then they cannot communicate with you by phone at all. Every time you need to talk to them, you'll have to meet face-to-face.

      "You want to know the results of your strep test? Make an appointment for a week from Tuesday."

    9. Re:That's an interesting take on it. by demonbug · · Score: 2, Interesting

      A whole bunch of people seem to have missed the argument that Verizon is making. They are not claiming that the first amendment allows them to publish private records, they are claiming that the right to petition the government, which is specifically laid out in the First Amendment, allows them to share otherwise private records with the government.

      Basically, they're saying that they suspect some of their customers may have been engaged in illegal activities, so it is their right under the First Amendment to petition the government (in this case by sharing personal data) to investigate these possible illegal activities. As ridiculous as it sounds, they may actually have a point.

      Assuming a corporation is protected by the first amendment (which seems to be the case), this does make some sense. If an individual came to possess information about potentially illegal activities (say, they learn that the company they work for is dumping toxic waste in a nearby river), chances are it would be illegal for them to publish whatever proprietary information they possess that lead to their suspicion/conclusion. To publish the information would (potentially) infringe on the corportation's rights. However, it would be perfectly legal (according to Verizon's claim) for the person to share the data with the government, as a "petition" for something to be done about it.

      I'm not a lawyer, but this argument actually does make some sense, if you base it on the assumption that a corporation (Verizon) shares the same constitutional protections as an individual (which while not spelled out, or even suggested AFAIK, in the constitution appears to have been enshrined in case history/judicial interpretation). If all this were to be true, the only question would be whether sharing data on all of their customers rather than specific individuals they suspect of wrongdoing really counts as petitioning the government (especially when it was in response to the government asking for the information).

      Anyway, all this is pure speculation on my part, and as I said, I'm no lawyer. But Verizon's argument seems much more interesting than most of the comments I've read imply. They are not claiming the right to publish private information willy-nilly, but rather they apply to a specific provision in the first amendment - that a person has the right to petition the government - and that as part of that petition they may share otherwise confidential data.

      But yeah - I hope this goes down in flames, as it seems likely to do.

  2. I dont have a clue? by psichaotic · · Score: 0, Interesting

    Can someone please explain to me why corporations have the same constitutional rights as citizens do?

    1. Re:I dont have a clue? by psichaotic · · Score: 0, Interesting

      It still doesnt make sense to me. A corporation is not a sentient being, it cannot make decisions, it can't go to prison for its actions. Can a corporation also bear arms? The people running the corporations have their own rights, these are not good enough?

  3. Re:I wish there was a way by jimstapleton · · Score: 2, Interesting

    I agree.

    Actually, my thoughts are this:

    If they waved those rights in their contract, then their argument shouldn't have any weight - they agreed not to tell.

    However, if they did not wave those rights in the contracts with customers, then their argument seems sound to me.

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  4. Re:If it really is "protected free speech" ... by Short+Circuit · · Score: 5, Interesting

    You've just applied "If you want protection, you have something to be protected from" to corporations. That seems rather analogous to arguments made against personal privacy from government security.

    When did we come full circle?

    --
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  5. Man... by faloi · · Score: 2, Interesting

    I care less about the legal arguments and merits of the case than I do about what this says about Verizon's respect for customer information confidentiality. I was thinking about swapping because my current carrier has crappy sound quality (but a lot of bars!), and my hearing is bad enough that I'd rather have good quality and dropped calls. Not that your run of the mill we were a monopoly now we're not a monopoly hey we're a monopoly again carrier would do any better with privacy...

    --
    "It is a miracle that curiosity survives formal education." -Albert Einstein
  6. Precedent by RyoShin · · Score: 4, Interesting

    Well, looks like we've been given a free pass.

    Who wants to be the first to tap into the phone lines of Verizon execs and lawyers to hand over to the government? A Slashdot is fine, too.

    Oh right, we're just citizens. I guess that means this "right" is only really held by Verizon.

  7. Is anyone here under an NDA with Verizon? by kimvette · · Score: 3, Interesting

    Try posting your confidential client information here and see if Verizon considers it freedom of speech. Things like, oh, passwords, code snippets, and so forth. Does the first amendment cover posting client information?

    Will Verizon sue me for making this suggestion to their contractors and employees, despite my merely exercising my freedom of speech as provided for under the First Amendment of the Constitution of The united States of America?

    Or is the first amendment intended to protect voicing of unpopular opinions, especially political opinions, and not to be used to reveal confidential client information?

    --
    The Christian Right is Neither (Christian nor right). See: Matthew 23, Matthew 25, Ezekiel 16:48-50
  8. I'm a bit confused... by arkham6 · · Score: 4, Interesting

    Since when do corporations get to claim protections from the constitution? Since when do they get first amendment rights?

    Does this mean that corporations can start owning firearms and having their own militias, per the 2nd amendment? Does this mean that they can't testify against themselves per the 5th amendment?

  9. Re:I wish there was a way by tomhudson · · Score: 5, Interesting

    "However, if they did not wave those rights in the contracts with customers, then their argument seems sound to me."

    Companies aren't people, and as such do not have the same rights that people have. Verizon is grasping at straws to avoid having their ass handed to them in a class-action lawsuit.

  10. Kneejerk by N8F8 · · Score: 2, Interesting

    I believe most of the reactions I'm reading are based on misinformation spread in the pres that the data given amounts to wiretapping. Please read:

    Scenario 1: A house down the block from you is known or strongly suspected to be used for drug trafficking. To gather information about the drug trade and investigate individuals the police park an undercover cruiser nearby to write down license tags of those who visit the house. Those tags are then used to identify the individuals and possibly obtain warrants and wiretaps.

    With me so far?

    Ok, move this scenario to the virtual world.

    Scenario 2: The police need a way to identify potential criminals/terrorists. The closest thing they have to monitor traffic is the phone connection history from the phone company. This history is a huge database of call origination end termination identifiers. They analyze this data to identify folks making calls to known or suspected criminals/terrorists. When they thing they have identified a suspicious call they get a warrant and go back to the phone company to identify the caller so they can then apply for wiretaps. They don't have the "content" of the call or a recording of it, simply a record of start and end points.

    Like it or not, the police need some way of tracking activity. In the physical world this is by monitoring any activity in public view. In the virtual world this translates to identifying the "path" each communication took on its way from caller to receiver..

    --
    "God fights on the side with the best artillery." - Napoleon, Marshal of France - speaking truth to power
  11. Do corporations enjoy constitutional rights? by erroneus · · Score: 3, Interesting

    It's a pretty ridiculous argument to make in light of the fact that there are already laws in place to restrict that specific type of information. Further, Verizon isn't a person, so I'm not sure that it would qualify as an entity capable of weilding first amendment rights.

  12. Whatta load of steaming manure by VorlonFog · · Score: 2, Interesting

    IANAL, but IMHO the Bill of Rights applies to individual citizens, and not to public corporations.

  13. Re:Corporations are NOT CITIZENS by Anonymous Coward · · Score: 1, Interesting

    How about death sentence to corporations which claim rights, reserved for citizens - to have a taste of all the benefits of being a citizen?

  14. Bingo! by Gription · · Score: 4, Interesting

    (To risk the wrath of our Corporate Overlords. . .)
    The first amendment is a right of The People. A lot of the problems that we have stem from lawmakers (conveniently) forgetting that the Bill of Rights are the people's rights and that corporations clearly aren't people and unless there is an amendment to the constitution to change it, corporations do not get those protections.

    It think the confusion seems to spring from the fact that campaign contributions and lobbying money mostly comes from corporations. I wonder if a blanket ban of contributions from any source other then individual people would make anything work better...

  15. Distorted beyond all reason by Torodung · · Score: 2, Interesting

    First off, shame on Slashdot for reporting that Verizon's delivering call logs to the NSA is anything but data, used to corroborate and mine the substantive assets of NSA wiretapping of our communications grid that has gone on since at least the Nixon administration.

    Editors, if you have a problem with the NSA, criticize the NSA, not Verizon. Verizon is delivering *consumer data*, not the contents or verbiage of phone calls. It is not "wiretapping," it is data mining. Data mining is bad enough, but be accurate here because this is important.

    Secondly, shame on Verizon for undermining the first and fourth amendments by pitting them in direct opposition to one another. I'm really unhappy with the clever corporate lawyer who came up with this idea, and his brilliant "strategy" will do nothing but undermine at least one if not both of those amendments. What the hell happened to discretion?

    After all, there is a big difference between what is LEGAL and what is ETHICAL.

    There is no compromise here. Free speech is about EXPRESSION, not CONTENT. You do not have the right to express any CONTENT you wish. In this case, our privacy and right against unreasonable search is protected by law, and the CONTENT protected by those laws may not be EXPRESSED without our permission, in the exact same way that your photo may not be published without your permission.

    So the first amendment will now be weakened by the precedent, hamstringing companies about how they may internally use consumer data (or even if they may retain it beyond the billing cycle), or an unjust ruling will weaken the fourth amendment. Way to go Verizon legal team!

    I'm betting on the fourth amendment this time. Clever lawyers are killing their own companies. They should consider the stakes before raising such arguments. Discretion is everything in law.

    --
    Toro

  16. Re:They have a point.... by Mr.+Underbridge · · Score: 2, Interesting

    They have a point, but man, that ranks right up there with:

            * The Klan is a legal social club
            * The Westboro Baptist Church has a right to protest at gay funerals
            * Neo-Nazis have a right to march in Cincinnati
            * Michael Stipe has the right to any haircut he likes

    Actually, I don't think they have a point that is parallel to those. Each of those is an example of something bad that doesn't really directly tread on someone's rights (with a possible exception of the second point). These guys are trying to mix their right to speech free from criminal prosecution with freedom from civil action that may result from people harmed from their speech. The question is, are people harmed by turning over records to the government in a direct, quantifiable way? That's still a tough case to prove.