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Verizon Claims Free Speech Over NSA Wiretapping
Posted by
Zonk
on Tue May 08, 2007 07:43 AM
from the corporations-shold-have-the-right-to-have-babies dept.
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.'"
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That's an interesting take on it. (Score:5, Interesting)
Re:That's an interesting take on it. (Score:5, Insightful)
Parent
Re:That's an interesting take on it. (Score:4, Interesting)
Parent
Re:That's an interesting take on it. (Score:4, Informative)
Chris Mattern
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Re:That's an interesting take on it. (Score:5, Insightful)
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Re:That's an interesting take on it. (Score:4, Interesting)
I hate to be a conspiracy theorist, but I think there's more than meets the eye here.
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Re: (Score:3, Insightful)
There is a difference between "not in the Constitution" and "contrary to the Constitution" (i.e. unconstitutional).
Re:That's an interesting take on it. (Score:5, 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.
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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Re: (Score:3, Interesting)
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 co
Re:That's an interesting take on it. (Score:5, Interesting)
Parent
You Make an Excellent Point (Score:4, Insightful)
Which is why I find it very frustrating that your point is not generally accepted by legal professionals.
It comes up a lot on /., probably because we have some degree of reading comprehension. The Constitution--and the intent of those who included the Ninth and Tenth amendments in the Bill of Rights--clearly points to a "natural law" approach, wherein it is unnecessary to enumerate every right worth protecting.
But the current jurisprudence is that the Tenth Amendment (with small exception under Rehnquist and O'Connor, who of course are both gone) is a "tautology," basically stating that whatever power the federal government hasn't taken, the states get to keep. Whether the new court continues to expand federalism will probably depend on who the next president is; if Republican, the court will continue to expand his powers at the expense of the states. If democrat, the court will probably stick to the ideological arguments their party used to make in an attempt to limit his or her party's power.
The current jurisprudence on the Ninth Amendment is: ignore it at all costs! Roe v. Wade was actually decided on a right to privacy prtected by the Ninth Amendment... by the appellate court. The Supreme Court rejected this argument, though it still found a right to privacy embedded in there somewhere, oddly enough. The problem with the Ninth Amendment is that it is something of a pandora's box. I believe that under judicial review, the Supreme Court has the power to interpret the amendment (note the Court gives "content" to other amendments all the time), but it has refused to do so, citing judicial activism. Robert Bork has described it as an "inkblot." Early on in our country's history, when natural rights were well accepted, the Ninth Amendment had some influence. But in the past hundred-plus years, well, let's just say that under modern jurisprudence the Ninth Amendment may as well not exist.
In the interet of balance, it should be clear why this is the case. Imagine a liberal Supreme Court uses the Ninth to find all forms of abortion constitutionally protected. Or a conservative Court uses it to protect people who preach in public schools. This could go back and forth and extend to literally anything involving a "right," real or imagined; basically the Ninth Amendment has the potential to allow the Court to decide as it pleases without further legal analysis. This is not ideal... but the counterargument is, don't they frequently do that already anyway?
At any rate, I am not a lawyer (yet!), and this is not legal advice. But I cannot tell you how happy it would make me to someday be able to tell someone, "Yes. Your obvious natural right to privacy is protected by the Ninth Amendment."
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If it really is "protected free speech" ... (Score:5, Insightful)
Re:If it really is "protected free speech" ... (Score:5, Interesting)
When did we come full circle?
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How Orwellian (Score:5, Insightful)
War is Peace
Freedom is Slavery
Ignorance is Strength
Spying is Free Speach
They have a point.... (Score:5, Funny)
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.
Oh come *on*! (Score:5, Insightful)
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 [wikipedia.org] is protected; Benedict Arnold's [wikipedia.org] is not.
Confidentality and free speech (Score:5, Insightful)
-b.
Re: (Score:3, Insightful)
Irrelevant -- I'm saying that their *argumentation* and *reasoning* are simply wrong.
-b.
Sad state of legalese (Score:5, Insightful)
Is This a Parody? (Score:5, Insightful)
Is it 1982? (Score:5, Insightful)
Common Misconception (Score:5, Insightful)
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.
Wrong part of 1st amendment (Score:3)
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. numb
Corporations are NOT CITIZENS (Score:5, Insightful)
We need some severe curtailment of corporate rights. Immediately.
The problem here ... (Score:5, Insightful)
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.
Corporations are people, that's the problem... (Score:4, Informative)
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.
Parent
Man... (Score:3, Interesting)
Precedent (Score:5, Interesting)
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.
Is anyone here under an NDA with Verizon? (Score:4, Interesting)
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?
I'm a bit confused... (Score:5, Interesting)
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?
Kneejerk (Score:3, Interesting)
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..
It's not monitoring *only* suspected terrorists... (Score:5, Insightful)
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".
Parent
Re: (Score:3, Insightful)
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
Do corporations enjoy constitutional rights? (Score:4, Interesting)
Where did the common sense go? (Score:4, Insightful)
Re:I dont have a clue? (Score:5, Insightful)
Parent
Re: (Score:3, Interesting)
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.
Re:I wish there was a way (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.
Parent
Re:I wish there was a way (Score:4, Informative)
Under the current law governing corporations, I think Mr. Verizon's legal claim stands. Go figure...
[1] That documentary is a must see...
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Re:I wish there was a way (Score:4, Informative)
"iologically speaking, you are correct, however I thought US law effectively made a corporate entity a "person" with said rights."
Nope. Corporations can't vote, hold office, etc. They can't even sign agreements (only authorized representatives - REAL people - can sign, and they need to be authorized by other REAL people (sorry for the caps :-); if its a high-enough level, then it needs to be a board meeting that grants the authorization).
Parent
Bingo! (Score:4, Interesting)
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...
Parent
Re: (Score:3, Informative)
Check this as a starting point for more info: Corporate Personhood [wikipedia.org]
Re:I wish there was a way (Score:4, Informative)
Parent
If a bear claps with one hand in the forest... (Score:4, Funny)
Parent
Re:I wish there was a way (Score:5, Insightful)
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Re: (Score:3, Insightful)
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.
Re: (Score:3, Insightful)
Re: (Score:3, Insightful)
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.
Re:So, let me get this straight (Score:5, Insightful)
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 [twice.com], federal merger fights [mondaq.com], 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.
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Verizon's argument == govt's (Score:5, Insightful)
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.
Parent