In today’s New York Times, Matt Richtel and Ken Belson look at the statements made this week by the major telcos and come up with a conclusion: The NSA Call Records program seems to have been focused on long distance carriers instead of local call carriers. An excerpt:
Government efforts to obtain data from the nation’s largest phone companies for a national security database appear to have focused on long-distance carriers, not local ones, statements by company officials indicate.
The statements have come in the week since USA Today reported that the National Security Agency had collected local and long-distance phone records on tens of millions of Americans from Verizon, BellSouth and AT&T in the aftermath of the Sept. 11 attacks.
The responses by the companies suggest that the agency, in an effort to find patterns that could identify terrorists, sought records from major long-distance providers like the former MCI (now part of Verizon), AT&T and Qwest, but did not ask for data on local calls.
Why does that matter for purposes of the phone companies’ liability? Well, I’m not sure it does. But I have a possible idea about why it might.
Here’s my thinking. The Stored Communications Act, 18 U.S.C. 2701-11, only regulates two kinds of providers: providers of electronic communication service and providers of remote computing service. Everyone agrees that the telephone companies are not acting as providers of remote computing service, so if they are liable they must be acting as providers of electronic communication service. 18 U.S.C. 2510(15) defines “electronic communication service” as “any service which provides to users thereof the ability to send or receive wire or electronic communications.” (For our purposes, a “wire communication” is a telephone call; an “electronic commuincation” is an e-mail.)
A local telephone company is clearly a provider of electronic communication service: it literally provides users the ability to send or receive telephone calls. But is a company that only provides long distance service a provider of electronic communication service?
Maybe, but I’m not entirely sure. I don’t know much about how modern telephone networks work, but I am guessing that local carriers carry the first part of the call. In the case of a long-distance call, I assume that the long-distance carrier picks up the call at some point from the local carrier, and sends it to the local carrier at the receiving end of the call. If that’s right, I’m not entirely sure the long-distance carrier is a provider of electronic communications service.
I can see arguments on both sides: one one hand, the long-distance provider is providing users the ability to send a particular type of wire communication in a particular way; on the other hand, users have the ability to send wire communications without it. What do you think? Are companies that only provide long-distance service providers of “electronic communication service”?
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Some additional speculation along these lines:
18 USC 2702(a)(3), which is the section of ECPA that generally prohibits telecom carriers from voluntarily divulging call-detail records to the government, applies to “a provider of remote computing service or electronic communication service to the public.”
1) If the long-distance company actually carries the caller(s) on its books as a customer, then I think that company reasonably should be considered such a provider.
2) If the records are incidentally captured on the systems of long-distance carriers only incidentally as a result of their connections to local landline or cellphone providers, it may be arguable that the long-distance companies are not providing service “to the public” but rather to the local or cellphone companies.
3) Reportedly, some of the major telecom carriers outsource their billing to third-party companies. Does ECPA prohibit these companies from disclosing their customer records to the government?
I have had little experience with the SCA but I don’t follow why (or rather, how) you suggest the SCA might not cover long-distance providers. Let’s say the setup is as you suppose and the long-distance providers contract to provide local carriers (i.e., “users”) with “the ability to send or receive wire or electronic communications” to other local carriers, knowing that this access/ability is resold to consumers (probably also “users” either as a practical interpretation of “user” or via third-party beneficiary status). How does the existence of local carriers change the nature of the long-distance providers’ service? Are you suggesting that only end consumers can be “users”?
Perhaps my confusion stems from my inability to see what you’re driving at when you say “users have the ability to send wire communications without [long-distance service].” Huh? Why should a long-distance provider’s failure to have achieved a monopoly on wire communications take it out of the statutory definition of provider of electronic communication service?
Professor Kerr, I’m not sure I am convinced that long distance carriers cannot fall under the definition of “remote computing service.” I know that traditionally data (email and internet traffic) is separated from oral communications (phone calls); however, though I might be totally wrong, it seems this is based on an historic, outdated understanding of telephone operations. No longer are phone calls directed based on fixed switches. In particular, long distance calls are routed through computer based switches based on shortest available path (though local calls operate similarly, they do not get routed through a second carrier).
18 U.S.C. 2711(3) provides: “remote computing service” means the provision to the public of computer storage or processing services by means of an electronic communications system (emphasis added).
It seems to me that the method of routing long distance calls would fall under this processing service by means of an electronic communications system. As you argued above, a local provider is an electronic communications provider as it directly supplies the ability to access the phone system. Why is a long distance carrier not a remote service, as it is supplying the same ability indirectly? If a long distance carrier is not considered an electronic provider, and it does effect the transmission of long distance calls (long distance calls cannot be made without the service), then it would seem there is no other choice but to call it a remote provider. I understand this is against the traditional view of the courts, but it seems to me that this would be the proper evaluation of the legal definition of a long distance provider.
Of course, if a court accepted that the long distance provider is an electronic communications provider, this would be moot. But, it seems that if a call goes from local carrier A to local carrier B, through long distance carrier C; and A and B are both electronic communications providers, then C must be a remote provider.
Very creative argument; but I’m afraid it doesn’t pass the smell test for me.
Frank,
I don’t think that argument works, for reasons I get into in part in my article on the SCA in the GW law review. Courts have since rejected that kind of argument elsewhere, as well.
I’m with Steve: it’s a novel argument with little to recommend it. On a purely textual level, sec. 2510(15) has nothing in its broad terms that would rule out the IXCs. And to the extent anyone believes in legislative history these days (other than Presidential signing statements), there’s the blanket assertion in the 1986 House report that “[c]ommon carriers like existing telephone companies are deemed providers of an electronic communication service.” (Note that earlier in the same report, by contrast, there are explicit differentiations of the respective roles of local and long-distance carriers. See, e.g., page 33 — contrasting “local exchange carrier” with “interexchange carriers” — and page 18 (“local telephone comapny” [sic] vs. “long distance companies”).)
Your argument is that a long-distance provider doesn’t directly provide users with the ability to send or receive wire communications, since that ability is provided by local telephone companies? This seems very counter-intuitive.
A hypothetical. Suppose some local telephone company decides that its primary business is routing calls from phone to phone. Under this model, all of the last-mile considerations (house lines, etc.) are handled by some other company. When a user makes a phone call, Last Mile Co. connects the user to Call-Routers, Inc., which routes the call to Final Kilometer Corp., which connects the call to the final destination. Suppose that without Call-Routers, users can call the home office at Last Mile but no-one else. Call-Routers certainly sends messages on users’ behalf, but they don’t directly grant users that ability — that comes from Last Mile. Is Call-Routers therefore not acting as a communications service, even though phone service is essentially useless without them?
It seems to me that forwarding electronic communications to recipients that users might otherwise not be able to reach is certainly well within the spirit of “electronic communication service”, and probably within the word as well.
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Orin,
I can see your linguistic argument, but I’m not buying it. The text of the statute, as you note, is: “any service which provides to users thereof the ability to send or receive wire or electronic communications.”
For your argument to hold, that statute should say something akin to: any service “which is required” to enable users thereof…
I think one can still be a provider of something without being the “sole” provider of that something.
Wouldn’t that also mean that long distance carriers are free under 2511(3)(a) to disclose the contents of any phone call that happens to pass over their networks? I suspect the courts would want to avoid that result.
Professor Kerr,
I may be misreading your post, but I am a little unclear on why a long-distance provider would not qualify as an “electronic communications service.” Given that the communication in question could not be performed without the help of the long-distance provider, it seems clear to me that said provider has given them the ability to send an electronic or wire communication. The fact that the company did not provide the entirety of the transportation of that message, and that it does not handle all communications, seems to me to be irrelevant.
After all, the US Post Office does not handle all packages, but it certainly provides “mail communication services.”
And if I am a manufacturer, there may be 5 or 6 parties involved in moving my equipment from my factory in, say, China, to the US. However, the fact that an ocean liner corporation did not singelhandedly move my equipment from door to door does in no way preclude it from having provided “transportation services.” The fact that alternative transport is available is irrelevant to the question of whether in that instance such services were provided.
I suspect, therefore, that I may be misinterpreting your commentary. Can you clarify why you think there is a significant question here?
[OK Comments: My argument is based on the statutory definition.]
Sure they’re an “electronic communications” servic e provider: The end user pays them directly and has a relationship with them, with the understanding that they’ll provide communications when the calls cross LEC boundaries. I don’t really see how any particular link of the electronic communication chain for a long distance call isn’t part of the chain.
Your phone has a unique code that tells the local company which provider to connect you to. Using this unique (proprietary) code you will connect to the proper long distance carrier. Your call is transmitted over lines that the long distance provider either own, maintain, or rent. Your call goes to the long distance providers closest office and is then switched over to the local service and the call completed. Your arguement here swings on the understanding of the what it means to be a provider of the service. To me it seems symbiotic. Long distance carriers could not survive without the local carriers feeding them the electronic transmission, but clearly they are key in enabling the communications to route over lines.
A strong arguement in the governments favor is in the nature of cellular technology. There, the provider actually provides the proprietary electronic device (the phone) as well as the transmission lines (or cell towers).
i agree – clever, but perhaps a bit TOO clever.
but isn’t it a moot point anyway with respect to the bells. they all provide long-distance services now (post-96) anyway
Just to further confuse the picture, we tend to speak of these companies as one company, but they usually are a holding company for lots of companies, e.g.,
http://www.sbc.com/gen/privacy-policy?pid=2596&phase=check
(SBC bought AT&T, then chnaged its name to At&T)
i would be very careful about quick conclusions such as whether a particular comapny is a common carrier (sometimes companies are formed specifically not to be common carriers but contract carriers) or whether a company is both a local and long distance company.
Perhaps this comment is not substantive enough, but if Orin’s reverse engineering in the dark is plausible and reasonable, it follows that a current DOJ insiders with greater information about the program writing an opinion letter for the government could come up with a reasonable and plausible rationale.
Interesting post, Orin. It’s fairly clear websites are not ECS’s because they do not provide the ability to connect to the Internet, and that seems analogous to your analysis of long distance service. But it seems unlikely to me Congress in 1986 meant to exclude long distance telephone providers from coverage under 2702 and 2703 and failed to mention it. I don’t know how (if at all) one can reconcile those two points.
I’m intrigued by the notion that the data that the carriers may be providing may not be data from their customers, or may be aggregate data both from their customers and not their customers. There is some magic involved in phone routing, where an individual call goes over whatever is the best route at the exact moment that the call is made, and so the actual routing and cost of a call can be wildly different if it is made a few seconds later or earlier. The magic is that the phone companies have worked out complex contractural arrangements where they carry calls that another carrier is getting paid for, and it all comes out roughly even in the end. (Cheating on this system was a fundamental part of the fraud that MCI was conducting.)
But that adds an interesting twist, doesn’t it? Suppose your carrier is AT&T, and you make a call that actually goes over a route that does not include a single piece of AT&T equipment, and one of those other companies (that you have no business relationship with at all) gives the government the information on the call. The technology does seem to be out in front of the law, does it not?
cathy