BROOKE GLADSTONE: This week, Congress skewered U.S. Internet providers for their willingness to comply with Chinese authorities, but another far older group of communication providers has a long history of sometimes illegal compliance with a government, namely our phone companies with our government. Revelations about the National Security Agency's use of phone companies for domestic surveillance have raised new questions about when the industry should comply with official requests to pry. And while the Senate announced Thursday that it would not soon be launching an investigation, the House says it will. Also this week, a federal judge ordered the Justice Department to release documents related to the wiretap program. It wouldn't be the first time the courts and Congress have weighed in to curtail such programs. In 1967, the Supreme Court placed limits on the practice, and Morton Halperin, who served in the Johnson, Nixon and Clinton administrations, explains that in 1975, the Church Committee exposed decades of overreaching by several administrations.
MORTON HALPERIN: Well, Congress looked at various forms of abuses, including abuses of electronic surveillance, often at the request of the Nixon administration. There were programs focused on government officials - including me - and members of the press, and there were earlier programs directed at the steel industry, directed at Martin Luther King, Jr. There were a number of abuses that were reported.
BROOKE GLADSTONE: Tell me about what happened to you.
MORTON HALPERIN: Well, I was working with Henry Kissinger on the NSA staff in the Nixon administration, and there was a story that appeared in the New York Times saying that the United States had begun bombing Cambodia. Nixon ordered Kissinger to begin a program of wiretapping. Kissinger supplied my name and that of other people to the FBI. And the FBI then had a system worked out whereby a key person in the FBI would call the chief of security at AT&T and just give him a phone number. There was no paper. There was no justification. There was no explanation of how this related to national security. The AT&T security officer would take that phone number and arrange for those phone conversations to be fed into the local FBI field office, where people would listen to them and transcribe them. And that was done with my home phone for 21 months.
BROOKE GLADSTONE: Do you know if AT&T put up any resistance to being used for surveillance?
MORTON HALPERIN: Not until they began to be sued. At that point, AT&T went to the Ford Administration and said, you know, that we cannot continue to do these surveillances just on the word of an FBI official. We're going to have to have some more routine system. The Ford Administration feared that the phone company would stop providing the cooperation that they needed, unless there was a legal system established by Congress.
BROOKE GLADSTONE: That is the court, FISA, that was set up to approve secret wiretapping, and you advocated for the FISA court.
MORTON HALPERIN: Yeah. I thought it was important to regularize the system. And one of the reasons Congress thought that was so important was to send a clear message to the telephone company. You cooperate if the executive is doing wiretaps pursuant to these rules, and you refuse to cooperate if they're operating outside these rules.
BROOKE GLADSTONE: Did AT&T derive any benefit from complying readily with these requests?
MORTON HALPERIN: Well, the main benefit they got is there was constant pressure to break up AT&T, which was a telecommunications monopoly. The Justice Department was stopped from doing that by the national security establishment, which would go to the President and say that the national interest required that there be a single telecommunications company that could cooperate with the government. So AT&T had a big stake in having the national security establishment and the government feeling that they were cooperative.
BROOKE GLADSTONE: Obviously, the technology by which we communicate has undergone a lot of important changes in the last 30 years, and I wonder how the NSA, for example, has taken advantage of the changing ways in which we communicate.
MORTON HALPERIN: What technology has done is made it much harder for the government to intercept communications. It was much easier to do it when you were dealing with satellites because the satellite stuff is all in the air, and NSA could grab it. Recently, a lot of calls that used to go through satellites now go through fiber optic cables. That's why the law requires the phone companies to construct their systems so that they can be overheard.
BROOKE GLADSTONE: As far as we know, the old wiretapping cases involved picking out a person and then wiretapping them.
MORTON HALPERIN: Yes.
BROOKE GLADSTONE: This case involves vacuuming in key words, right?
MORTON HALPERIN: No. There are clearly two different NSA programs. One that the President has described is an old-fashioned wiretapping program, putting wiretaps on the home phones of Americans who they believe are having conversations with somebody abroad where they believe the person abroad is a member of al Qaeda. My belief is that there is a second program, which NSA began after 9/11, which does involve the vacuuming up of large quantities of data and a search through it for key words. The Attorney General, when he testified before the Judiciary Committee in public, was asked whether there was any other program which they were not describing, basically declined to answer that question in a public session.
BROOKE GLADSTONE: It seems that with so much competition within the telecommunications industry, there would be greater pressure for them to prove to their consumers that they are protecting the public's interest.
MORTON HALPERIN: Yeah. But nobody wants to be responsible for having shut off the phone call which came saying, "Go blow up the Brooklyn Bridge." So I think it's unlikely that a phone company will go that far. My hope is that they would say to the government what AT&T said in the early '70s, which is we're going to continue this for a while, but you need to go to Congress and get this authorized, or at some point we're going to have to shut it down.
BROOKE GLADSTONE: Well, Morton Halperin, thank you very much.
MORTON HALPERIN: Not at all. It's my pleasure.
BROOKE GLADSTONE: Morton Halperin is the director of U.S. advocacy for the Open Society Institute. [MUSIC UP AND UNDER]
BOB GARFIELD: Up next, a new study suggests that the Sunday chat shows tilt right, and a new film ponders what if the South had won the Civil War?
BROOKE GLADSTONE: This is On the Media from NPR. (FUNDING CREDITS)