Level 3 denies helping U.S. gov't conduct surveillance (but if it did, it still couldn't tell you)

Tier 1 companies and named Silicon Valley technology firms are trying to point the finger at FISA, the secretive mass surveillance law. But the very nature of the law is preventing them from saying anything — or even mentioning the law itself.
Written by Zack Whittaker, Contributor

Level 3, a Tier 1 provider of fiber optic networks, has denied an agreement signed in 2003 included provisions for the U.S. government to wiretap its networks.

The Broomfield, Colo.-based networking company said on Thursday that the 2003 deal was superseded by a new agreement with government lawyers in 2011, following the acquisition of Global Crossing for $3 billion.

The 2011 signed agreement is available on the FCC's website.

The Washington Post reported last week on "Team Telecom," a coalition of lawyers from a number of U.S. government departments that allegedly "ensur[e] that surveillance requests got fulfilled quickly and confidentially," the publication claims.

"Team Telecom" is described formally [PDF] by the U.S. Federal Communications Commission as, "an interagency group that reviews the applications for potential national security, law enforcement, and public interest concerns."

According to the FCC, staff from the U.S. Dept. of Homeland Security, the U.S. Dept. of Justice, the U.S. Dept. of Defense, and the Federal Bureau of Investigation (FBI) co-lead the team.

The nature and scope of Team Telecom's work is unknown. However, the fiber operator noted: "Our 2011 network security agreement largely addresses the security of Level 3's U.S.-based communications assets," the statement read.

The company also noted that they must also comply with "Lawful U.S. Process." 

Though not cited directly, much of Level 3's obligations under such lawful U.S. process falls under the Foreign Intelligence Surveillance Act (FISA).

'We couldn't tell you even if we wanted to'

Tier 1 companies have been sprung into the limelight amid news the National Security Agency's mass surveillance program.

The slides leaked by former NSA contractor turned whisteblower Edward Snowden described along with PRISM a program called "Upstream," which hinted that Tier 1 companies and fiber operators were having their cables intercepted by the FBI's Data Intercept Technology Unit (DITU). 

Following this, ZDNet documented in an investigative report how Tier 1 companies, such as Level 3, were likely forced by the U.S. government under secretive interpretations of U.S. law to allow federal agencies into their networks.

This is understood to be under the FAIRVIEW program, commissioned by the NSA.

Meanwhile, Tier 1 companies that operate core fiber networks will be prevented from disclosing such wiretapping operations under gagging clauses.

"All of the countries where we deliver services have law enforcement and security concerns, and we are periodically compelled by government authorities to assist in their investigations," Level 3 said.

"Our policy is the same everywhere," the statement added. "We comply with applicable local law while taking all reasonable steps to protect our customers' privacy."

"In general, jurisdictions that seek assistance in law enforcement or security investigations prohibit disclosure of the assistance provided," hinting but not directly naming FISA, which includes gagging orders that prevent anyone except a limited number of people who are required to technically carry out such wiretaps from disclosing it to others.

These law enforcement requests are issued by the Foreign Intelligence Surveillance Court (FISC), which can invoke Section 215 of the Patriot Act [PDF], forcing the company to hand over any "tangible things." This can, in many cases, result in the handing over of every shred of data the company has.

FISA court requests in many cases cannot be appealed.

The interpretation of FISA and the Patriot Act has long been known as being secretive and out of the depth in which it was intended, according to two senators who first noted the broad, sweeping measures of the government's reach.

'The first rule of FISA club?'

It's becoming increasingly clear that the companies under the thumb of, or in conjunction with the U.S. government in some way, shape or form, are fighting back. 

The logic behind openly allowing the government access to user data doesn't seem to exist. There are fundamentally no financial or underlying benefits in allowing the U.S. government, or any other country's intelligence agencies, from accessing private citizen data, unless a company was forced to by law. 

What do these seven named companies — AOL, Apple, Facebook, Yahoo, Google and YouTube, Microsoft and Skype, and little-known company PalTalk, first implicated in the NSA spying scandal — get out of handing over their data to the government, even without a warrant?

The bottom line is that they get nothing out of this. Nothing.

The flip side is if they did, and they were found out, all hell would break loose. Financial authority investigations, shareholders dumping stock, not to mention the negative public perception this would have, and other legislative bodies around the world wanting to protect their users from third-country spying.

And whether you believe the leaked documents from Snowden, The Guardian, and The Washington Post — or not — one thing is eminently clear, amid the haze of misdirection and confusion. These companies aren't hiding behind words such as "direct access" and "applicable law" and "national security" in a bid to wriggle out of corporate responsibility or a cheap attempt to deceive the public.

They're hinting. They're trying to point the finger at FISA, but they're not allowed to even raise their hands.

And while we can all believe this may be true, the very nature of these secretive laws is that we will likely never know.

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