Markey Seeks FCC Ruling on NSA Program

The Federal Communications Commission needs to determine whether major phone companies violated the law by providing calling records to the National Security Agency for use in the electronic hunt for terrorists here and abroad, Rep. Edward Markey (D-Mass.) said Monday.

In a letter, Markey asked FCC chairman Kevin Martin whether the agency planned to investigate AT&T Inc., Verizon Communications Inc. and BellSouth Corp. “for alleged violations of consumer privacy.” Markey asked for “detailed legal reasoning” if the FCC determines that the law has not been broken. He asked for a response no later than May 22.

“We are reviewing it carefully and will respond accordingly,” FCC spokesman David Fiske said.

USA Today reported May 11 that the three Baby Bells turned over millions of phone records to the NSA as part of secret program designed to find patterns in calling records that could help capture terrorists. The program -- launched after the Sept. 11, 2001, attacks -- does not involving the listening or recording of conversations, the paper reported.

Whether the NSA program violated the law is under debate. According to The New York Times, Rep. Jane Harmon (D-Calif.), a member of the House Intelligence Committee, said the Bush White House violated the Foreign Intelligence Surveillance Act of 1974 because the administration failed to obtain approval from a special court.

White House national-security adviser Stephen Hadley has said that the program is legal.

In his letter, Markey said the phone companies may have violated a provision of telecommunications law that requires carriers to protect the confidentiality of “proprietary information” they have on consumers.

“I am aware of no exception in that statute or in the [FCC’s] regulations for ‘intelligence-gathering purposes’ or any other similar purpose that would permit the wholesale disclosure of consumer records to any entity,” Markey said.

He noted that Qwest Communications International Inc. was the lone Baby Bell to refuse the NSA, based on concerns that turning over the records would be illegal.In a prepared statement, BellSouth denied providing phone-records data to the NSA.

The Senate Judiciary Subcommittee on Antitrust, Competition Policy and Consumer Rights is scheduled to hold a hearing Thursday afternoon on AT&T’s $67 billion merger with BellSouth. A witness list has not been announced.

The hearing might be postponed because subcommittee chairman Mike DeWine (R-Ohio) might have to attend an Intelligence Committee hearing at the same time on Gen. Michael Hayden’s nomination to become the director of the Central Intelligence Agency, DeWine spokeswoman Breann Gonzalez said.

Hayden, now deputy director of the Office of National Intelligence, headed the NSA from March 1999-April 2005 and would have overseen the phone-records program, USA Today reported.