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Yet another compelling reason why the current telcom legislation (COPE HR.5252 and S. 2686) should be stalled and stopped

from: USA Today

Cable firms: Law protects customers
Updated 5/11/2006 11:26 PM ET
By David Lieberman, USA TODAY

NEW YORK — Leading cable operators say a 1984 federal law would stop them from handing customer calling records to the National Security Agency the way AT&T, Verizon and BellSouth have, as reported Thursday in USA TODAY.

The phone giants agreed after Sept. 11, 2001, to create a database of customer calling logs to help the NSA find terrorists, according to the report.

Comcast, the largest operator, doesn't "provide the federal government access to customer (video, Internet or phone calling) records, or the ability to monitor customer communications, in the absence of valid legal process" such as a court order or search warrant, says spokeswoman D'Arcy Rudnay. Time Warner and Cox also said that it would take such an order for them to give the government such access.

The cable operators said that Congress, in its Cable Communications Policy Act in 1984, explicitly required operators to get subscriber consent before collecting "personally identifiable information" or disclosing it to third parties. The act lets them disclose information to the government in response to a court order, although customers must be notified and allowed to contest it if it involves video programming. The act also lets companies gather data without consent to provide customer service.

In addition, the cable industry has a history of opposing government regulation.

"There are probably good reasons the NSA would go to the phone companies instead of the cable companies," says Marc Rotenberg, executive director of the Electronic Privacy Information Center. "There isn't a tradition (in cable) of turning over customer records."

Congress extended the cable privacy rules to satellite subscribers in a 2004 law. "They took the cable statute and substituted the words 'satellite operator' for 'cable provider,' " says DirecTV associate general counsel Chris Murphy.

But cable operators said the government has made it more difficult to apply the privacy standards set in 1984 when they just offered video, to their Internet and phone services.

Congress in 2001 amended the Cable Act to make it jibe with their Electronic Communications Privacy Act, which requires Internet providers to obey a government order to turn over data about Web habits without informing the subscriber.

With phone service, the Federal Communications Commission "has not yet said what the privacy policy would be," says National Cable & Telecommunications Association general counsel Neal Goldberg. "We've suggested (the Cable Act) requirements. We're used to them. We know how to operate under them. At a minimum, we've said, don't impose inconsistent or conflicting requirements."

Among third-party companies offering phone capability via broadband, Skyype had no comment. Vonage spokeswoman Brooke Schulz said, "Our position on this issue as it relates to Vonage is pretty clear. We don't supply any government authority with call record data or any sensitive customer information without a subpoena."

Contributing: Edward C. Baig