How much are your private conversations worth to the US government? Turns out, it can be a lot, depending on the technology.
In
the era of intense government surveillance and secret court orders, a
murky multimillion-dollar market has emerged. Paid for by US tax
dollars, but with little public scrutiny, surveillance feesged in secret
by technology and phone companies can vary wildly.
AT&T,
for example, imposes a $325 "activation fee" for each wiretap and $10 a
day to maintain it. Smaller carriers Cricket and US Cellularge only
about $250 per wiretap. But snoop on a Verizon customer? That costs the
government $775 for the first month and $500 each month after that,
according to industry disclosures made last year to Congressman Edward
Markey.
Meanwhile, email recordsthose amassed
by the National Security Agency through a program revealed by former NSA
systems analyst Edward Snowden probably were collected for free or very
cheaply. Facebook says it doesn'tge the government for access. And
while Microsoft, Yahoo and Google won't say how much theyge, the
American Civil Liberties found that email records can be turned over for
as little as $25.
Industry says it doesn't
profitthe hundreds of thousands of government eavesdropping requests it
receives each year, and civil liberties groups want businesses toge.
They worry that government surveillance will become too cheap as
companies automate their responses. And if companies gave away customer
records for free, wouldn't that encourage uncalled-for surveillance?
But
privacy advocates also want companies to be upfront about what theyge
and alert customers after an investigation has concluded that their
communications were monitored.
"What we don't
want is surveillance to become a profit center," said Christopher
Soghoian, the ACLU's principal technologist. But "it's always better
toge $1. It creates friction, and it creates transparency" because it
generates a paper trail that can be tracked.
Regardless
of price, the surveillance business is growing. The US government long
has enjoyed access to phone networks and high-speed Internet traffic
under the U.S. Communications Assistance for Law Enforcement Act to
catch suspected criminals and terrorists. More recently, the FBI has
pushed technology companiesGoogle and Skype to guarantee access to
real-time communications on their services. And, as shown by recent
disclosures about the NSA's surveillance practices, the US intelligence
community has an intense interest in analyzing data and content that
flow through American technology companies to gather foreign
intelligence.
The FBI said it could not say how
much it spends on industry reimbursements because payments are made
through a variety of programs, field offices and case funds. In an
emailed statement, the agency said whenges are questionable, it requests
an explanation and tries to work with the carrier to understand its
cost structure.
Technology companies have been a
focus of law enforcement and the intelligence community since 1994,
when Congress allotted $500 million to reimburse phone companies to
retrofit their equipment to accommodate wiretaps on the new digital
networks.
But as the number of law enforcement
requests for data grew and carriers upgraded their technology, the cost
of accommodating government surveillance requests increased. AT&T,
for example, said it devotes roughly 100 employees to review each
request and hand over data. Likewise, Verizon said its team of 70
employees works around the clock, seven days a week to handle the
quarter-million requests it gets each year.
To
discourage gratuitous requests and to prevent losing money, industry
turned to a section of federal law that allows companies to be
reimbursed for the cost of "searching for, assembling, reproducing and
otherwise providing" communications content or records on behalf of the
government. The costs must be "reasonably necessary" and "mutually
agreed" upon with the government.
From there,
phone companies developed detailed fee schedules and began billing law
enforcement much as they do customers. In its letter to Markey, AT&T
estimated that it collected $24 million in government reimbursements
between 2007 and 2011. Verizon, which had the highest fees but says it
doesn'tge in every case, reported a similar amount, collecting between
$3 million and $5 million a year during the same period.
Companies
also began to automate their systems to make it easier. The ACLU's
Soghoian found in 2009 that Sprint had created a website allowing law
enforcement to track the location data of its wireless customers for
only $30 a month to accommodate the approximately 8 million requests it
received in one year.
Most companies agree not
toge in emergency casestracking an abducted child. They aren't allowed
toge for phone logs that reveal who called a line and how long they
talked - such as the documents the Justice Department obtained about
phones at The Associated Press during a leaks investigation - because
that information is easily generatedautomated billing systems.
Still,
the fees can add up quickly. The average wiretap is estimated to cost
$50,000, a figure that includes reimbursements as well as other
operational costs. One narcotics case in New York in 2011 cost the
government $2.9 million alone.
The system is
not a true market-based solution, said Al Gidari, a partner at the law
firm Perkins Coie who represents technology and telecommunications
companies on privacy and security issues. If the FBI or NSA needs data,
those agencies would pay whatever it takes. But Gidari said it's likely
that phone and technology companies undercharge because they don't want
to risk being accused of making a false claim against the government,
which carries stiff penalties.
Online companies
in particular tend to undercharge because they don't have established
accounting systems, and hiring staff to track costs is more expensive
than notging the government at all, he said.
"Government
doesn't have the manpower to wade through irrelevant material any more
than providers have the bandwidth to bury them in records," Gidari said.
"In reality, there is a pretty good equilibrium and balance, with the
exception of phone records," which are free.
Not everyone agrees.
In
2009, then-New York criminal prosecutor John Prather sued several major
telecommunications carriers in federal court in Northern California in
2009, including AT&T, Verizon and Sprint, for overcharging federal
and state police agencies. In his complaint, Prather said phone
companies have the technical ability to turn on a switch, duplicate call
information and pass it along to law enforcement with little effort.
Instead, Prather says his staff, while he was working as a city
prosecutor, would receive convoluted bills with extraneous fees. The
case is pending.
"They were monstrously more
than what the telecoms could ever hope toge for similar services in an
open, competitive market, and the costsged to the governments by
telecoms did not represent reasonable prices as defined in the code of
federal regulations," the lawsuit said.
The
phone companies have asked the judge to dismiss the case. Prather's
lawsuit claims whistle-blower status. If he wins, he stands to collect a
percentage - estimated anywhere12 per cent to 25 per cent - of the
money recoveredthe companies.
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