Qwest Sets Admirable Example in NSA Case

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In a snap poll taken in the hours following disclosure of the National Security Agency’s massive database of potentially 200 million people’s phone call records, approximately 63 percent of Americans thought the NSA’s privacy-invading tactics were acceptable.

Those 63 percent are no stranger to me. I first met them back in a college political science course in the late 1980s.

They’re roughly the same gaggle of fine, upstanding Americans who, if you ask the questions just right, would shred the Constitution, ban free speech, abandon privacy rights, and happily give away almost every other civil liberty that makes America great.

The “anti-America Americans,” as I call them (at least in polite company), made their voices heard in a Washington Post-ABC News poll was taken last Thursday night. The poll was hastily conducted to gauge public reaction to Thursday morning’s article by a USA Today investigative reporter that the NSA was gathering what could be one of the largest databases in history, comprised of the personal calling records of customers of three out of the four largest telephone companies in the U.S.

There is an important lesson for your own company to be learned from the actions of that fourth phone company, but I will get to that in a moment.

According to the pollsters, the message to be drawn from the poll is that a majority of Americans believe that the need to thwart terrorism outweighs their own, and every other citizen’s, right to privacy.

No Legal Basis

Unfortunately, the core problem is that citizens don’t get to decide that. Neither does the self-proclaimed “Decider in Chief,” President George W. Bush.

Since the NSA’s domestic wiretapping scheme was first disclosed, I have spent a lot of time studying the constitutional basis for privacy protections and our nation’s laws on government surveillance. Simply put, I can find no legal basis to for believing that the recent excesses of the National Security Agency are either lawful or constitutional.

More importantly, this administration’s continual assertions that a president can ignore any law or constitutional provision if he believes it in the national security interests are, in my opinion, only a short slide down a very slippery slope from the kind of totalitarian and dictatorial regimes that right-thinking Americans spent most of the last century standing against.

Except, of course, for the times when they didn’t.

Looking back to that college political science class, I was first introduced to that majority of anti-America Americans in a textbook aptly entitled “The Irony of Democracy.” In that groundbreaking work, the authors posited that there wasn’t a single defining ideal of America that a majority of American’s wouldn’t toss on the bonfire if average people were allowed to set policies, or if unscrupulous political leaders whipped them into a sufficient frenzy.

According to the authors, the irony of our democratic system is that it remains stable and viable through structures – such as deliberative bodies like the Congress and through (ostensibly) apolitical institutions like an independent judiciary – that insulate our system from the ravages of actual democracy.

In short, the irony of our democracy is that you have to keep the anti-democratic tendencies of the rabble in check by protecting democracy from the democratic will of the people.

The ease with which our nation can lapse into breaches of our core principles is alarming. Whether it was oppressing people of color, rounding up people of Japanese ancestry during World War II, or performing body-cavity searches on every airplane passenger with a middle eastern surname, it only takes a little fear-mongering by our elected officials to make many Americans gleefully betray our most precious American principles.

If there’s any glimmer of hope in this vast morass of betrayed ideals, it comes from the lawyers at the regional telephone company Qwest. As it turns out, apparently they were the only ones to remember their lawyerly oaths to uphold and defend the Constitution when they asked the NSA to prove that their latest scheme was actually legal.

The first duty of a lawyer in responding to requests like the NSA’s is to ask whether the entity making that request has the legal authority to do so. Since there are several legal prohibitions that prevent the NSA from spying on Americans without obtaining court-approved warrants, this is far from a trivial question.

Cheap Threats

Yet apparently the lawyers at AT&T, Verizon, and BellSouth, missed the day in law school when they taught us not to break the law. Instead, they appear to have reflexively responded to the sight of requests on government letterhead with roughly the same reaction my cat has to a shaft of sunlight: roll over, expose your tummy, and drool.

Had those attorneys remembered their duties and their oaths, they would have found ample legal reasons to balk at the NSA’s request – including federal laws that say they can be sued for giving customer data to the government without a court-issued warrant.

According to the USA Today report, when Qwest’s attorneys asked the NSA for such a warrant, the NSA responded that a court would never approve such a request, so they weren’t going to ask for it.

The NSA also reportedly threatened Qwest with withholding future government contracts if they didn’t play along with the NSA’s illegal activities.

It’s the duty of anyone who has taken an oath to uphold the law and the Constitution, as well as all executives who bear fiduciary duties to act in the best interest of their companies and their shareholders, to be skeptical, to ask questions, and to not give in until their duty has been performed. And there is nothing more fundamentally correct than refusing to break the law, even when the government tries to bully you into it.

While I’m heartened that Qwest’s lawyers stood firm, I’m even more impressed that the company’s executives backed them up. It’s far too easy for executives to “go along to get along” and to do the easy thing, even if it’s dead wrong.

In this era of outrageous corporate scandals, in which abandoning morals and ethics for profit is still par for the course, to see executives standing with their legal counsel on fundamental principles of law in the face of government law-breaking is almost quaint.

The roster of those who should be ashamed – not to mention indicted and/or impeached – over the latest NSA privacy invasion debacle is depressingly lengthy. But if there are any heroes to emerge, among them may well be Qwest’s privacy-sensitive lawyers standing firm against brazen law-breaking by government officials.

If only more corporate executives would learn to show the same devotion to the rule of law, dedication to their fiduciary duties, and commitment the principles of American democracy that created the marketplace in which they can succeed, there may yet be hope for this nation – despite the will of the anti-America majority.