Anticipating that the U.S. federal government would invoke the so-called
"state secrets" privilege to block any lawsuit calling for the disclosure
of details about allegations that phone companies shared customer records with
the government's biggest spy agency, a major civil rights group has embarked
on an alternate course.
The American Civil Liberties Union (ACLU) has filed complaints in more
than 20 individual states demanding that their utility commissions and attorneys
general convene public hearings and call phone company executives to testify.
The ACLU action in Massachusetts is typical of the approach being taken by
the civil rights group. Carol Rose, executive director of the ACLU in Massachusetts,
said four mayors had complained to the state's utility regulatory board, where.
State law requires the board to conduct public hearings when a mayor complains.
Michael D. Bissonnette, mayor of Chicopee, Massachusetts, said he joined the
requests because privacy was fast becoming the key civil rights issue.
"This is likely the greatest invasion of consumer privacy in our nation's
history," he said.
The ACLU filed similar complaints in Arizona, Colorado, Connecticut, Delaware,
Florida, Iowa, Kansas, Missouri, Nebraska, Nevada, New Jersey, New York, Oregon,
Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia and Washington.
Typically, state utilities commissions are mandated to regulate the activities
of telephone and other electronic carriers operating in their respective states.
A full-frontal legal assault on the National Security Agency would likely hit
the brick wall of the "state secrets" doctrine - through which the
government is able to keep sensitive cases from ever coming to trial because
public disclosures would compromise national security. Once rarely used, the
state secrets privilege has become one of the staple defenses used by the Bush
Administration to maintain secrecy.
As the ACLU filed its state complaints, it also launched a nationwide campaign
to encourage citizens to make their utility commissions aware of their privacy
concerns. This campaign is being conducted through an online complaint form
available at the ACLU website (www.aclu.org).
The group is also running full-page ads in eight large-city newspapers asking
the public to join the complaints. The ads claim that telecommunications companies
including "AT&T, Verizon and Other Phone Companies May Have Illegally
Sent Your Phone Records to the National Security Agency."
The ACLU said its complaints were filed in the states of Arizona, Colorado,
Connecticut, Delaware, Florida, Iowa, Kansas, Massachusetts, Missouri, Nebraska,
Nevada, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Tennessee,
Texas, Vermont, Virginia, and Washington.
Ads were taken out in newspapers in Portland, Oregon, Seattle, Washington,
New York City, New York, Philadelphia, Pennsylvania, Chicago, Illinois, Miami,
Florida, Boston, Massachusetts, and San Francisco, California.
The civil rights group has also asked the U.S. Federal Communications Commission
(FCC) to reconsider its recent decision not to investigate the alleged provision
of tens of millions of telephone records to the National Security Agency (NSA).
The NSA is the largest of the government's spy agencies and both the creator
and executor of the massive program.
The phone-records issue was exposed after a newspaper, USA Today, reported
the program on May 11. It charged that three major national phone companies
-- AT&T, Verizon, and BellSouth -- had turned over the call records of millions
of Americans to the US government in the wake of the Sept. 11 attacks.
President George W. Bush and other administration officials have neither confirmed
nor denied the USA Today report that the NSA is collecting the calling records
of ordinary Americans in its effort to detect the plans of al-Qaida and other
terrorist organizations. But Bush has said the administration's anti-terrorism
surveillance programs are legal and constitutional.
Meanwhile, attorneys who specialize in class action lawsuits are preparing
to file a blizzard of suits against the phone companies purportedly involved
with the NSA program. The ACLU of Illinois has already filed suit against one
of the suspect phone companies, AT&T, charging that its actions in the NSA
program violated customer privacy.
But it remains unclear which phone firms handed over what records to whom.
Some companies have denied involvement - but the ACLU notes that those denials
have carefully worded and some have referred to the national security interests
All the companies named by USA Today have disputed the newspaper's account.
AT&T has neither confirmed nor denied it, but has said that no information
was released illegally.
Verizon has flatly denied involvement in the NSA program. But it has left open
the issue of whether MCI, the long-distance subsidiary it acquired in January,
has turned over records to the government.
BellSouth issued a statement earlier this month that said, "Based on our
review to date, we have confirmed no such contract exists and we have not provided
bulk customer calling records to the NSA." Civil rights groups are saying
that the use of the word "contract" in this denial appears to be a
If legal claims against the phone companies continue to gain momentum, their
costs could be enormous - reminiscent of such past actions as litigation against
the major tobacco companies.
In response to an ACLU letter, the FCC -- the agency charged with overseeing
the entire U.S. telecommunications industry - said it does not have the authority
to look into the phone records program because its members lack the necessary
The ACLU believes the phone program is the latest example of "a longer-term
abuse of power by the executive branch," said executive director Anthony
In response to a question during a telephone press conference, an ACLU spokesman
accused the federal government and the named phone companies of "hiding
behind the 'state secrets privilege' " to keep critical information about
citizens' privacy from being made public.
Civil liberties lawyers have questioned the legal basis that Attorney General
Alberto R. Gonzales has used to justify the constitutionality of collecting
domestic telephone records as part of the Bush administration's anti-terrorism
Gonzales said such an activity would not require a court warrant under a 1979
Supreme Court ruling because it involved obtaining "business records."
Under the 27-year-old court ruling in Smith v. Maryland, "those kinds of
records do not enjoy Fourth Amendment protection," Gonzales said. "There
is no reasonable expectation of privacy in those kinds of records," he
But other legal experts disagree. For example, G. Jack King Jr. of the National
Association of Criminal Defense Lawyers noted that Congress in 1986 passed the
Electronic Communications Privacy Act requiring court orders before turning
over call records to the government. He said Gonzales is correct in saying "the
administration isn't violating the Fourth Amendment" (which prohibits unlawful
searches and seizures without a warrant based on probable cause). But he added
that Gonzales is "failing to acknowledge that it is breaking" the
1986 law, which requires a court order "with a few very narrow exceptions."
The phone records at issue do not contain the names or contents of calls, but
do list which numbers called which other numbers, both internationally and domestically,
and how those calls were routed.
According to USA Today, this information was then sifted by powerful computers
in an attempt to discover a pattern that might reveal the presence of terrorists
in the US. The newspaper reported that the NSA had used the phone records of
the known 9/11 conspirators to try to establish a model of how terrorists communicate.
In April, the ACLU and other civil rights, journalism and business advocacy
groups who frequently communicate by phone and e-mail with people in the Middle
East, filed suit against another NSA program, the so-called Domestic Surveillance
Program, through which the NSA eavesdrops on international telephone calls and
emails, one end of which is in the U.S.
Oral arguments are currently scheduled for June 12, and it is widely expected
that the government will invoke its "state secrets privilege" to keep
the case out of court.