***SEE UPDATE III BELOW FOR THE LATEST***

Now that all three Telecom giants who were mentioned in the original USA Today article have strenuously denied giving the government access to the kind of data mentioned, we should begin examining the possibility that the story may have gotten key elements of the NSA telephone program wrong.

This does not mean the program doesn’t exist. In fact, Senator Hatch came out yesterday and virtually confirmed that part of the NSA story:

Two judges on the secretive court that approves warrants for intelligence surveillance were told of the broad monitoring programs that have raised recent controversy, a Republican senator said Tuesday, connecting a court to knowledge of the collecting of millions of phone records for the first time.

President Bush, meanwhile, insisted the government does not listen in on domestic telephone conversations among ordinary Americans. But he declined to specifically discuss the compiling of phone records, or whether that would amount to an invasion of privacy.

Meanwhile, Verizon has joined Bell South and AT&T in denying they turned over their call records to the government en masse:

One of the most glaring and repeated falsehoods in the media reporting is the assertion that, in the aftermath of the 9/11 attacks, Verizon was approached by NSA and entered into an arrangement to provide the NSA with data from its customers’ domestic calls.

This is false. From the time of the 9/11 attacks until just four months ago, Verizon had three major businesses – its wireline phone business, its wireless company and its directory publishing business. It also had its own Internet Service Provider and long-distance businesses. Contrary to the media reports, Verizon was not asked by NSA to provide, nor did Verizon provide, customer phone records from any of these businesses, or any call data from those records. None of these companies – wireless or wireline – provided customer records or call data.

Another error is the claim that data on local calls is being turned over to NSA and that simple “calls across town” are being “tracked.” In fact, phone companies do not even make records of local calls in most cases because the vast majority of customers are not billed per call for local calls. In any event, the claim is just wrong. As stated above, Verizon’s wireless and wireline companies did not provide to NSA customer records or call data, local or otherwise.

I think it could very well be that USA Today got several aspects of the story wrong. And the reason is that their source was probably unfamiliar with details of the program and just assumed that the Telecoms had cooperated. Or, it could even be that their sources had no direct knowledge of the technical aspects of the program and were guessing. Either way, it points to a disturbing trend in recent days as two news outlets – ABC and USAT - have written scare stories that have now proven to be at the very least, overblown and perhaps even factually wrong.

In ABC’s case, Brian Ross breathlessly wrote on the ABC blog The Blotter that the phone calls of ABC reporters were being “tracked.” How they got this news is like reading something right out of the Watergate era:

A senior federal law enforcement official tells ABC News the government is tracking the phone numbers we (Brian Ross and Richard Esposito) call in an effort to root out confidential sources.

“It’s time for you to get some new cell phones, quick,” the source told us in an in-person conversation.

I wonder if they met in a basement parking garage?

ABC News does not know how the government determined who we are calling, or whether our phone records were provided to the government as part of the recently-disclosed NSA collection of domestic phone calls.

Other sources have told us that phone calls and contacts by reporters for ABC News, along with the New York Times and the Washington Post, are being examined as part of a widespread CIA leak investigation.

This was the scare quote;”...whether our phone records were provided to the government as part of the recently-disclosed NSA collection of domestic phone calls.” The fact is, that was pure speculation – and not even good speculation a that. What they found in a follow up report was the legal (but admittedly troubling) practice carried out under the auspices of the Patriot Act that allow the FBI access to phone records without a warrant through the use of so-called “National Security Letters:

The official said our blotter item was wrong to suggest that ABC News phone calls were being “tracked.”

“Think of it more as backtracking,” said a senior federal official.

But FBI officials did not deny that phone records of ABC News, the New York Times and the Washington Post had been sought as part of a investigation of leaks at the CIA.

So Ross was wrong in most of his original piece that swept the internet like wildfire and instead we find that the FBI (not the NSA or CIA) is conducting a legitimate investigation using tools in the Patriot Act that were passed by Congress and signed by the President. (Note: I’m not sure if the NSL’s specifically were upheld in the various cases challenging the constitutionality of the Patriot Act). In short, absolutely nothing illegal or untoward was occurring. But if you happened to be reading lefty blogs a couple of days ago, with headlines like “This is the End,” you would have thought the Republic had fallen.

ABC News reporters calls were not being “tracked.” And now we have these categorical denials from the major Telecoms about the NSA story in USA Today.

Is this a case of scare mongering by the major media?

Unlike the first NSA story that leaked back in December, where there were literally a flood of leaks about the program following its initial release by the New York Times, there has been hardly a peep from our cadre of leakers about this aspect of NSA terrorist surveillance. No deep background explanations. In fact, very few follow up stories have been written by major media outlets. All of this leads me to believe that there is something either incomplete or just plain wrong about this story. And my guess would be that USA Today got the data collection angle wrong.

Of course, we’ll probably never know for sure given the secrecy of the program. But unless the Telecoms are just plain lying, I don’t see how you can reconcile what was written in USA Today with the statements made by the companies.

UPDATE

More breathless baloney from ABC News blog this morning:

The Department of Justice says it secretly sought phone records and other documents of 3,501 people last year under a provision of the Patriot Act that does not require judicial oversight.

The records were obtained with the use of what are known as National Security Letters, which can be signed by an FBI agent and are only for use in terrorism cases.

In the immortal words of Secretary of Defense Albert Nimzicki from Independence Day, “That’s not entirely accurate.”

First of all, there should be no doubt that what the FBI is doing is perfectly legal. We can all be leery of many aspects in the Patriot Act but that doesn’t change the fact that it is the law of the land and any aspersions cast otherwise is biased reporting.

That said, is what ABC News says the truth? In the immortal words of John Wayne’s unforgettable character Jacob McCandles from the film Big Jake, “Not Hardly.”

The USA PATRIOT Improvement and Reauthorization Act (H.R. 3199), P.L. 109-177, and its companion P.L. 109-178, amended the five NSL sections to expressly provide for judicial review of both the NSLs and the confidentiality requirements that attend them. The sections have also been made explicitly judicially enforceable and sanctions recognized for failure to comply with an NSL request or to breach NSL confidentiality requirements with the intent to obstruct justice. The use of the authority has been made subject to greater Congressional oversight.

I’m not a lawyer but I remember when they re-authorized the Patriot Act, they made some slight adjustments that allowed for judicial oversight. ABC News has no idea of such a review took place in their case which means their statement is incorrect.

As for their use “only” in terrorism cases, that is an overstatement as the statute talks about “national security” not terrorism with regard to NSL’s.

UPDATE II

CBS News Blog is wondering about the NSA telephone story too:

Are we watching a story fall apart before our very eyes? Something is certainly going on with that USA Today front-page splash about the secret NSA program to collect and analyze all the phone calls made within the United States. The story, published last week, sparked a fierce debate about privacy and the government’s ability to spy on Americans. It drew rebukes from even administration allies. There were no blanket denials made by the administration and no protestations of inaccurate reporting by those in the know. And there were no denials made by the phone companies named in the story as having provided information to the NSA – at least until now.

[...]

It is curious that these two companies took several days to issue these denials (the story broke last Thursday and the companies did not deny it then). A BellSouth spokesperson said the company wanted to do a thorough review to ensure that no such agreement had been made. It’s also worth considering there have been several class-action lawsuits filed in the wake of the USA Today story, so that could have something to do with the denials.

Still, we’re entering some rocky territory, especially for a story about a “secret” program based entirely on anonymous sources. Given the administration’s refusal to confirm or deny the report, the company denials and the anonymous sources, it may be time to ask how we’ll ever get the truth out of this story.

Does anyone else find it laughable that CBS seems to be in a snit because the Administration won’t confirm or deny the existence of a top secret program?

Is he serious?

UPDATE III

Think Progress has unearthed a “Presidential Memorandum” dated May 5 that would direct DNI John Negroponte to release the Telecoms from their legal obligation to be truthful in their transactions and activities. The Memorandum was published in the Federal Register and refers specifically to giving Negroponte the authority to waive certain sections of the law for purposes of “national security.”

This could mean that the companies have been given leave to conceal the truth about their cooperation with the NSA in the telephone records program. Then again, since I’m not a lawyer, it could mean that the government just wanted the latest ringtones available for download.

Either way, someone should look into this with a little less of a partisan eye than the good folks at Think Progress who have been known in the past to let their enthusiasm get the better of them. (Where’s Lawyer Volokh when you need him?)

Either way, a first class piece of sleuthing on their part to dig that out.