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Verizon Claims Free Speech Over NSA Wiretapping
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.'"
to mod legal arguments Funny.
Tsunami -- You can't bring a good wave down!
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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but that argument makes no sense at all
... why is the Bush administration trying to pass a bill allowing for "retroactive immunity for all telecommunications companies"? If there's nothing wrong with what Verizon has done why would the current administration need to cover Verizon's ass with this legislation? Smell's fishy to me ... I wonder if Verizon has done more than the public is aware of?
I think Orwell left out a slogan :
War is Peace
Freedom is Slavery
Ignorance is Strength
Spying is Free Speach
They have a point, but man, that ranks right up there with:
I'm 10 months into a 2 year contract with Verizon. I'm cancelling as soon as possible.
Politics is the art of looking for trouble, finding it everywhere, diagnosing it incorrectly and applying the wrong fix.
The first amendment protects us from government censorship. It's awfully brazen of Verizon to try to stretch that into protection of collusion with government. Especially when the speech in question is not political or even personal.
Verizon might have a tenuous point if they were simply selling the data to another company. Instead, since the only possible government use of Verizon's data is to enable crackdowns, the matter seems to fit better under the fourth or fifth amendments, both of which would arguably prohibit the whole transaction.
Thomas Paine's speech is protected; Benedict Arnold's is not.
FATMOUSE + YOU = FATMOUSE
-b.
So giving away customers' data is the right of the first amendment... That would mean companies like TJX whose data was compromised could argue that it wasn't their responsibility to protect the customer's data since it was distributed in free speech fashion as well no... Think about the logics of the argument... Verizon: "We gave the data away because its our first amendment right. We can do as we see fit..." TJX: "We weren't compromised. We gave your personal data away. Its our first amendment right." How many companies will follow this misleading notion. And how many greased-pocket (monkey)judges will side with VZ on this. This country is becoming one big capitalist wild west where privacy means nothing.
Infiltrated dot Net
I can yell "FIRE" in a crowded theater... if I'm petitioning the Government (maybe on the subject of what it should do with GWB)?
The Verizon argument was that their "speech" was true. So yes, if there really is a fire in the theatre, you should raise the alarm.
Of course, you'll probably be arrested as a terrorist when you do, but that's life.
The first amendment was supposed to protect dissenters from government suppression. Since then it has come to be considered protection from almost anyone who the speaker is speaking against. To use the first amendment for the benefit of the government against the people seems like a parody.
You have tried to support your argument with faulty reasoning! Go directly to jail; do not pass Go, do not collect $200!
Because they're empowered so to act in the interests of their shareholders, all of which are presumably human beings and therefore possessing constitutional rights.
Jesus is coming -- look busy!
It is also a tragically pathetic ploy at trying to justify something they KNOW DAMN WELL is wrong, in the service of a growing police state. They are more interested in sucking up to this administration (and their own business interests, since they are in various federal legal battles, federal merger fights, etc.)
If this is the best legal justification they can come of for doing it, they would be much better served by simply turning the tables, refusing to do it, and forcing the federal government to make THEIR case for it.
SJW: Someone who has run out of real oppression, and has to fake it.
You know it's coming folks. War is peace, freedom is slavery. More and more, companies and people are using phraseology, spurious logic, and blatant redefinition to justify doing evil things.
Steve's Computer Service, Hobbs, NM
Verizon's lawyers are simply perpetuating a common misunderstanding of the First Amendment. Yes, we are free to say what we please. No, we are not free from the consequences of what we say.
In old example of yelling "FIRE!" in a crowded theater, the problem is not the speech itself, but the resulting stampede and probable damage to people and property.
Slander is another example. You are free to stand up in public and say all sorts of nasty things about someone, but then they can sue you.
If Verizon wants to claim First Amendment rights, fine. We'll just start a class-action lawsuit.
Insisting on "correct" English is like saying that there is only one, definitive recipe for chili.
Companies should not be treated like citizens. Or, if they ARE treated like citizens, they should be just as accountable as citizens. They have the best of both worlds. They have more influence than you (just try getting heard by a congressmen without a lobbyist) over YOUR GOVERNMENT. For crying out loud. These entities are writing our laws AND influencing our legislative elections. Sure they can't vote, but they can sell the government the machines used to tabulate the count.
We need some severe curtailment of corporate rights. Immediately.
... is that everyone assumes that companies have First Amendment rights. Isn't the Constitution (and all subsequent Amendments) intended to protect the rights of the individual citizens? Corporations seem to claim corporate law when it suits them, and constitutional law when they want a little more leeway.
I know companies are supposed to have protections - in fact the must have some protections, but any time a company uses citizenship protections to claim the right to violate a real citizens right to protection from illegal search and seizure, something is wrong. In fact, any time a company is seen as having protections that supersede any individuals, something is very wrong.
This doesn't mean that Verizon should absolutely refuse any and all cooperation with the government - quite the contrary, but they should at least demand due process. That's a responsibility they take when they accept our custom. For my part, any indication they've handed my info over, they'd better have some very specific, rock solid warrants on record. As it is, I'm inclined to drop all their services at earliest opportunity. Too bad, they actually have the best offerings in my area, thought they're a bit on the costly side.
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
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.
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
So if it's true that someone wants to kill the President, they should be allowed to sing it from the rooftops with no legal consequences?
SJW: Someone who has run out of real oppression, and has to fake it.
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?
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
...to warn the pope about some poop he's about to slip in, and the pope doesn't hear it, because, well, it's only one hand, or paw rather, but then a tree falls on the bear, killing the bear, and startling the pope, who looks up from the path, and slips on the poop, but the bear was well intentioned because the bear only *had* one hand, or rather paw, to begin with anyway, does the bear thusly enter into the kingdom of heaven?
If you mod me down, I shall become more powerful than you could possibly imagine.
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.
IANAL, but IMHO the Bill of Rights applies to individual citizens, and not to public corporations.
So if it's true that someone wants to kill the President, they should be allowed to sing it from the rooftops with no legal consequences?
Is it actually against the law to do this? It is illegal to threaten to kill him -- but is it actually illegal to want to kill him?
I.e: "I'm going to kill Bush" is obviously a threat. "I wish somebody would kill Bush" doesn't seem like one.
I want peace on earth and goodwill toward man.
We are the United States Government! We don't do that sort of thing.
'What Verizon is arguing is that it's okay to break ANY law as long as only "speech" is involved'
In this they are just borrowing a page from our distinguished gentlepersons in the administration, who feel that breaking ANY law is fine if you're working on the whole terrorism problem.
My turnips listen for the soft cry of your love
...It's monitoring *everyone*. The point to the tracking program was to note the originating and dialed numbers for *all* conversations, not merely those between suspects and the rest of the world. Furthermore, the whole argument from the beginning is that FISA provides for getting permission to monitor up to 72 hours from the start of the monitoring process.
FISA is intended to provide *exactly* the flexibility required to enable surveillance responsive to changing conditions (the genesis of the 72-hour provision), while still requiring the judicial review that is part of the fourth amendment's requirement of showing probable cause.
And I agree with other commenters that customer transaction records (be they phone calls, or reporting on who bought what groceries for how much) is by no stretch of the imagination "protected free speech".
I can't believe the number of posts I am seeing that say that they might have a point, or legally they might be correct. The USA has gone nuts. Where did everyone's common sense go?
They are not using what we consider to be the core "free speech" part of the first amendment, but the right to petition the government part.
Since they are not giving the data to the public, but instead to the feds, they are arguing they are covered by this.
In general this part is covered by the right of Americans, for example, to have any legislation they wish introduced to the Congress. You draft a bill and your Representative will introduce it. They won't support it probably, but you will get an H.R. number and can lobby for its passage. (note: they will probably ignore completely frivolous ideas) You also cannot be stopped from telling the government what you think of its ideas (though this does not cover threats). Anyone can also petition the Supreme Court themselves (this is how the right to an attorney in the Gideon case was presented).
I think they are on shaky footing both as a corporation (not a person) and historically. I cannot off the top of my head think of any precedent where a company reported legal activities and private data to the government and then tried to claim it was a petition.
(fyi - IANAL but I was a legislative aide for 5 years so I know the House stuff from experience)
(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...
In the US, companies are generally treated as people under the law ("juristic persons"). This stems from a series of cases from the late 19th century involving the railroads that made it to the US Supreme Court (the most famous being Santa Clara County v. Southern Pacific Railroad Company [118 U.S. 394 (1886)]). The Court didn't actually rule that corporations were people under the law, but that's how many people understood it, and that's more or less how we've operated ever since. Most legal and constitutional rights are afforded to corporations just as they are to individuals.
This has all sorts of very negative implications with regard to attempting to regulate business. Many people feel that it make the individuals second-class citizens in the eyes of the law -- and there's some really good arguments to that effect. Your "free speech" rights probably end at your employer's door, and if you sue you have to pay for your lawyers while for a company it's a tax-deductible expense (e.g., it's effectively subsidized by the government).
Verizon's blowing proverbial smoke through it's corporate anus here, though. Free speech is a poor argument in this case. First, not all speech is "free speech" and violating the reasonable confidence of a client would not be considered free speech. Factual or not, the information is of a personal nature and the individual would have a reasonable cause to believe it to remain private. It's no more free speech than if a lawyer violated the attorney-client privilege, of a psychologist had done the same.
Further, in Verizon's case, the "speech" consitutes aiding and abetting a criminal act: the government's violation of the 4th ammendment rights of Verizon's customers. While the government was engaged in the criminal activity, they could not have done so without the complicity of the company, who thus became an accessory to the crime.
George Bush famously said "there ought to be limits to free speech," and there are -- this is one such case. You can't cry "fire" in a crowded theater, you can't spread viscous rumors to torpedo someone's career, you can't talk about magic numbers that can be used to access digital media (OK, that's just stupid), and you can't provide sensitive information to the government that the explicitly requires them to obtain only with a court order after presenting a reasonable cause that an individual might be involved in criminal activity.
Comment removed based on user account deletion
A better idea is to provide the utility with a list of suspect numbers and receive notification of change of state in those accounts. Such state changes include received calls, dialed calls, forwarded calls, et cetera.
The point is to provide law enforcement entities with all information relevant to suspects that have received judicial review of probable cause.
If we're going to track things, the least we can do is filter them for relevancy. In this case, my disagreement with Verizon (and AT&T, who has also been entirely too cooperative with this exceptional monitoring) is that they are not filtering the content for relevancy to the actual suspects.
I remain committed to the idea that "they" (government) should required to submit requests to invade "our" privacy for a theoretically disinterested judicial review. Upon receiving that permission, the technical means is available for providing all relevant information to the monitoring law enforcement entities. All I would ask from our service providers is the filtering for relevance to those whose activities have passed the judicial test of probable cause.
I assume that as a commenter on Slashdot, you are aware of the basic technologies involved in this discussion, and therefore are aware that event filtering is technically feasible. (I will provide a resume to you, including the 8 years that I worked at AT&T BL developing SS7 switching infrastructure, if you really need to get into the ability of modern systems to provide basic filtering.)
I see no place in my comment where the concept of "currently committing a crime" appears in the discussion. That statement is a simple red herring and is irrelevant to the argument. The issue is simply judicial review of probable cause, and while there are likely subtleties to the legal arguments, we still have the fourth amendment. Showing probable cause to justify looking into what are otherwise private communications is a central part of it.
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.
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Toro
First off, 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 permission, in the exact same way that your photo may not be published without your permission.
So either 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.
On a lesser note, 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 for "wiretapping," 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 please be accurate because this is not entertainment news. This is really quite important.
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Toro
Corporations aren't people, they don't have any first amendment rights. Nothing to see here, move along.
The Farewell Tour II