verizon wiretapping - mclu comments

8/14/2019 Verizon Wiretapping - MCLU Comments

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MAINE CIVIL LIBERTIES UNION FOUNDATION

401 Cumberland Avenue Suite 105 Portland, Maine 04101 207 774-5444 Fax 207 774-1103

June 12, 2006

ELECTRONICALLY FILED

Mr. Dennis Keschl, Administrative Director

Maine Public Utilities Commission18 State House Station

Augusta, ME 04333

[email protected]

Re: MCLU Comments,JAMES D COWIE, ET AL. Request for Commission Investigation

Into Whether Verizon is Cooperating in Maine With the National Security AgencysWarrantless Domestic Wiretapping Program, Docket No. 2006-274

Dear Mr. Keschl:

Enclosed for filing, please find the Comments of Proposed Intervenor Maine Civil

Liberties Union Regarding the May 19 Response of Verizon Maine to Ten-Person Complaint.

The Maine Civil Liberties Union thanks the commission for the opportunity to comment.

Very truly yours,

Zachary L. Heiden, Esq.

CC: Andrew Hageler, Esq.

William Black, Esq.Donald W. Boecke, Esq.

James D. Cowie


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ELECTRONICALLY FILED ON JUNE 12, 2006 Docket No. 2006-274

STATE OF MAINE

PUBLIC UTILITIES COMMISSION

JAMES D COWIE, ET AL.

RE: Request for Commission Investigation

Into Whether Verizon is Cooperating in MaineWith the National Security Agencys

Warrantless Domestic Wiretapping Program

THIS IS A VIRTUAL DUPLICATE OF THE ORIGINAL HARDCOPY

SUBMITTED TO THE COMMISSION IN ACCORDANCE WITH

ITS ELECTRONIC FILING INSTRUCTIONS

Comments of Proposed Intervenor Maine Civil Liberties Union Regarding May 19

Response of Verizon Maine to Ten-Person Complaint

The Maine Civil Liberties Union respectfully disagrees with the May 19

Response of Verizon Maine to the Ten-Person Complaint (May 19 response)

concerning the implication of Verizons actions on the privacy rights of Maine telephone

service subscribers, filed with the Maine Public Utilities Commission (Commission) .

Rather than answer the questions posed by Commission attorney Andrew S. Hagler,

Verizon has attempted to hide its conduct behind a misreading of the Commissions

authority and a misapplication of an evidentiary privilege.

Verizons May 19 response to the Commission was incorrect in at least three

important ways: First, the Commission has both the authority and the obligation to

investigate whether and to what extent Verizon Maines actions impinge on the privacy

rights of Maine telephone service subscribers and violate 35-A M.R.S.A. 7101-A;1

Second, the Commissions jurisdiction to investigate this matter has not been preempted

by the Federal government; and Third, Verizon Maine cannot assert the state-secrets

privilege in order to shield itself from investigation.

1 35-A M.R.S.A. 7101-A(1) provides: [t]elephone subscribers have a right to privacy and the protection

of this right to privacy is of paramount concern to the State.


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First, the Commission has the authority and the obligation to investigate whether

Verizon Maine put the rights and well-being of its phone customers at risk.

The Commissions grant of authority from the Legislature is broad and robust,

and it evidences an intent by the Legislature that the Commission should actively

investigate and regulate public utilities in the State of Maine: All public utilities are

subject to the jurisdiction, control and regulation of the commission and to this Title.

35-A M.R.S.A. 103(2)(A). Public utilities willingly submit to the authority of the

Commission as a condition to being allowed to do business in Maine.

This power to investigate and regulate public utilities, such as Verizon Maine, has

been definitively upheld by the Maine Supreme Judicial Court. Sitting as the Law Court,

the Maine Supreme Judicial Court has long recognized that the regulation of public

utilities is a function entirely within the authority of the Public Utilities Commission.

City of Portland v. Public Utilities Commn, 656 A.2d 1217, 1220 (Me.,1995). Like all

other public utilities, Verizon is subject to special regulation and oversight by the

government; Verizon is not free to declare when that regulation and oversight does and

does not apply.

In light of its authority to investigate and regulate, the Commissions request for

information about Verizon Maines conduct is appropriate and reasonable, and must be

honored. The Law Court has set forth the standard for determining whether requests for

information from the Commission are enforceable and must be honored: Such a demand

is enforcible (sic) if (1) the inquiry is one the demanding agency is authorized by law to

make, (2) the information sought is relevant to the authorized inquiry, and (3) the

disclosure sought is reasonable; I.e., the demand is not disproportionately burdensome or

unreasonably broad. Central Maine Power Co. v. Maine Public Utilities Commission,

395 A.2d 414 (Me., 1978). The Commission is authorized, and indeed obligated, to

inquire as to whether the provisions of 35-A of the Maine Code are being followed. The

Commission cannot make that determination without a response from Verizon as to the

scope of its behavior. The Commissions request is narrow, asking only for information

about the privacy rights of Maine telephone customers. Verizon must substantively

answer the Commissions requests.


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Second, the Commissions jurisdiction to investigate this matter has not been

preempted by the Federal government.

The United States Supreme Court has definitively rejected the notion that

compliance with minimum federal standards immunizes the licensed commerce from

inconsistent or more demanding state regulations. Florida Lime & Avocado Growers,

Inc. v. Paul, 373 U.S. 132, 141 (1963). Our federalist system requires Verizon to comply

with both the laws of the Federal government and the laws of all states where it conducts

business; Verizon Maine is aware of this. Federal preemption of state regulation is the

narrow exception, rather than the rule, and it is dependent upon circumstances not present

here. Preemption of state law requires both Federal congressional intent to preempt and a

valid exercise of Federal authority to preempt.

In enacting the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. 90-

351, Tit. III, 82 Stat. 212, 18 U.S.C. 2510-2520 (Title III), Congress acted

affirmatively to regulate interception of telephonic communications by providing a

defense for cooperation with law enforcement pursuant to a Federal Court order. But,

there is nothing in Title III or in its legislative history indicating that interference with

telephone privacy was somehow acceptable. Indeed, the entire purpose of Title III was to

ensure that there was oversight by the courts of any such activity. Verizon Maines

invocation ofCamacho v. Autoridad de Telefonos de Puerto Rico, 868 F.2d 482 (1st Cir.,

1989) is, therefore, quite misleading. The central problem with the alleged conduct by

Verizon is that it was notperformed pursuant to a warrant issued by a judge upon a

showing of probable cause, as both Federal and Maine law require.

Contrary to the suggestion that Congress has occupied the field with regard to

telecommunications law, Congress has, in fact, expressed its intent that the states should

pass regulations to protect the rights of phone customers in the state (akin to 35-A

M.R.S.A. 7101-A), in the Telecommunications Act of 1996. Congressional intent is

quite clear that the states have an important role to play in telecommunications

regulation. The Telecommunications Act of 1996 states plainly that Nothing in this

section shall affect the ability of a State to impose, on a competitively neutral basis and

consistent with section 254 of this title, requirements necessary to . . . safeguard the rights

of consumers. 47 U.S.C. 253(b).


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When Congress enacted Foreign Intelligence Surveillance Act of 1978, 50 U.S.C.

1801 et seq. (FISA), it provided that the procedures of that Act and of Title III of the

Omnibus Crime Control and Safe Streets Act of 1968 (Title III), 18 U.S.C. 2510 et

seq., together constitute the exclusive means by which electronic surveillance . . . and

the interception of domestic wire, oral, and electronic communications may be

conducted. 18 U.S.C. 2511(2)(f) (emphasis added). But there are no indications in the

text of FISAs remedial provisions, 50 U.S.C. 1809-10; in the text of the exclusive

means provision, 18 U.S.C. 2511(f); or in the legislative reports on FISA,see S. Rep.

95-701, reprinted in 1978 U.S.C.C.A.N. 3973; S. Rep. 95-604(I), reprinted in 1978

U.S.C.C.A.N. 3904; H.R. Rep. 95-1283(I); H.R. Conf. Rep. 95-1720, reprinted in 1978

U.S.C.C.A.N. 4048, that Congress intended for its regulation of the means ofinterception

of electronic communications to occupy the field with respect to the disclosure of the

records of such communications.

None of the relevant Federal statutes evidence an intent by Congress to take over

this area of the law, or to insulate companies like Verizon Maine from state regulators.

As such, Verizon Maine is obligated to answer the questions put to it by the Commission.

Third, Verizon simply cannot assert the state-secrets privilege in order to shield

itself from investigation.

Verizon has no standing to assert the state-secrets privilege, which, as the U.S.

Court of Appeals recently reiterated, is an evidentiary privilege derived from the

Presidents constitutional authority over the conduct of this countrys diplomatic and

military affairs and therefore belongs exclusively to the Executive Branch. Khaled El-

Masri v. George Tenet, et al., 2006 WL 1391390 (E.D.Va., 2006); See alsoUnited States

v. Reynolds, 345 U.S. 1., 7-8 (1953). Verizon Maine is not a part of the Executive

Branch of the Federal Government; Verizon Maine has no responsibility for this

countrys diplomatic and military affairs. It is, therefore, impossible for Verizon Maine

to invoke the state-secrets privilege. Further, the state-secrets privilege may only be

validly asserted by the head of an Executive Branch agency charged with controlling the

state-secret at issue. See id.


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On page 5 of its May 19 response, Verizon notes that the Department of Justice

has asserted the state-secrets privilege in a case involving alleged unauthorized

violations of phone customer privacy by AT&T. Verizon Maine suggests that the same

rationale applies to Verizon Maines refusal to answer and to the Federal Bureau of

Investigations assertion of the state-secrets evidentiary privilege. This is not correct.

In the AT&T case (Hepting et al. v. AT&T Corp. (N.D. Ca.)), the United States

has sought to intervene and, simultaneously, assert the privilege on its own behalf. See

Hepting et al. v. AT&T Corp., Governments Memorandum of the United States in

Support of the Military and State Secrets Privilege and Motion to Dismiss or, in the

alternative, for Summary Judgment, appended to the May 19 response. InHepting, the

assertion of the state-secrets privilege was made by the Director of National Intelligence

(DNI) and the Director of the National Security Agency (DIRNSA). Verizon is not

the analogue of the DCI or the DIRNSA, and cannot appropriately analogize its refusal to

disclose information about the impact of its behavior on the privacy rights of Maine

telephone customers to the DCI and DIRNSAs efforts to protect secret information with

an impact on international relations. The U.S. Government has not sought to intervene in

the Commissions potential investigation, and any discussion, at this point, about the

appropriateness of the state-secrets privilege, is premature.

Even if the state-secrets privilege were to be properly invoked in this

investigation, its invocation would not be automatic cause for the Commission to

abandon its search for information, because the privilege is an evidentiary privilege and

not a doctrine of immunity. The state-secrets privilege is a common-law evidentiary rule

that permits the government, and only the government, to block discovery in a lawsuit of

any information that, if disclosed, would adversely affect national security. Ellsberg v.

Mitchell, 709 F.2d 51, 56 (D.C. Cir. 1983). It is employed to protect against disclosure of

information that will impair the nations defense capabilities, disclosure of intelligence-

gathering methods or capabilities, and disruption of diplomatic relations with foreign

governments. In re Under Seal, 945 F.3d 1285, 1287 n.2 (4th Cir.1991) (quoting

Ellsberg, 709 F.2d at 57);see also Sterling v. Tenet, 416 F.3d 338, 346 (4th Cir. 2005).

The privilege must be narrowly construed, and may not be used to shield any material

not strictly necessary to prevent injury to national security . . . . Ellsberg, 709 F.2d at


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58;see also United States v. Reynolds, 345 U.S. 1, 10 (1953) (there must be a

reasonable danger that disclosure will harm national security) (emphasis added).

The Supreme Court has cautioned that the privilege is not to be lightly invoked.

Reynolds, 345 U.S. at 7. That is because of the serious potential for defeating worthy

claims for violations of rights that would otherwise be proved . . . . In re United States,

872 F.2d 472, 476 (D.C. Cir. 1989). Accordingly, courts must use creativity and care

to devise procedures which would protect the privilege and yet allow the merits of the

controversy to be decided in some form. Fitzgerald v. Penthouse Intern, Ltd., 776 F.2d

1236, 1238, n.312 (4th Cir. 1985). Suits may be dismissed pursuant to the privilege

[o]nly when no amount of effort and care on the part of the court and the parties will

safeguard privileged material. Id. at 1244.

Even when the privilege is invoked to deny access to evidence during discovery,

courts have construed the privilege narrowly. Ellsberg, 709 F.2d at 57 ([W]henever

possible, sensitive information must be disentangled from nonsensitive information to

allow for the release of the latter);In re Grand Jury Subpoena Dated August 9, 2000,

218 F. Supp. 2d 544, 560 (S.D.N.Y. 2002) ([T]he contours of the privilege for state

secrets are narrow, and have been so defined in accord with uniquely American concerns

for democracy, openness, and separation of powers.). The Commission, if necessary,

can work with any government witnesses to develop creative solutions that ensure that

the investigation can proceed.

Dismissal of a case on state secrets grounds prior to discovery is proper only in an

extremely narrow category of cases in which the very subject matter of the suitis a state

secret. As the Fourth Circuit has held, unless the very question upon which the case

turns is itself a state secret, or . . . sensitive military secrets will be so central to the

subject matter of the litigation that any attempt to proceed will threaten disclosure of the

privileged matters, the plaintiffs case should be allowed to proceed . . . . DTM

Research L.L.C. v. AT&T Corp., 245 F.3d 327, 334 (4th Cir. 2001) (internal quotation

marks omitted); see also Sterling v. Tenet, 416 F.3d 338, 347-48 (4th Cir. 2005)

([W]hen the very subject of the litigation is itself a state secret, which provides no way

that case could be tried without compromising sensitive military secrets, a district court

may properly dismiss the plaintiffs case.) (internal quotation marks omitted). The


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Fourth Circuit has described as narrow the category of cases that may be dismissed

because of the centrality of the privileged material, or because the very subject matter

of the litigation is itself a state secret.Fitzgerald, 776 F.2d at 1243-44.

As a matter of law and common sense, the Verizon cannot legitimately keep

secret what is already widely known. See, e.g., Capital Cities Media, Inc. v. Toole, 463

U.S. 1303, 1306 (1983) (noting that Court has not permitted restrictions on the

publication of information that would have been available to any member of the public);

Snepp v. United States, 444 U.S. 507, 513 n.8 (1980) (suggesting that government would

have no interest in censoring information already in the public domain); Virginia Dept.

of State Police v. The Washington Post, 386 F.3d 567, 579 (4th Cir. 2004) (holding that

government had no compelling interest in keeping information sealed where the

information ha[d] already become a matter of public knowledge).2

The central facts of the Commissions investigation are not state secrets, and do

not become so simply because Verizon Maine insists otherwise. Far too many facts

about this matter have been officially acknowledged or made public for Verizon Maine,

or anyone else, plausibly to contend that it can neither confirm nor deny whether it put

the privacy rights of Maine phone customers at risk. Numerous news outlets have

reported on phone company behavior that threatens the privacy rights of ordinary

Americans.3

Both the President of the United States4

and the Chair of the Senate

Intelligence committee,5

to name just two officials, have acknowledged the existence of a

2See alsoSmith v. Daily Mail Publg Co., 443 U.S. 97, 103 (1979) (noting previous holding that once thetruthful information was publicly revealed or in the public domain the court could not constitutionally

restrain its dissemination) (internal quotation marks omitted); United States v. Marchetti, 466 F.2d 1309,

1318 (4th Cir. 1972) (noting that First Amendment precludes . . . restraints with respect to information

which is . . . officially disclosed); McGehee v. Casey, 718 F.2d 1137, 1141 (D.C. Cir. 1983) (noting that[t]he government has no legitimate interest in censoring unclassified materials or information . . .

derive[d] from public sources).3 For example: Eric Lichtblau and James Risen,Domestic Surveillance: The Program; Spy Agency Mined

Vast Data Trove, NEW YORKTIMES, (December 24, 2005); Shane Harris,NSA Spying Program Hinges On

State-of-the-Art Technology, NATIONAL JOURNAL, (January 20, 2006); John ONeil and Eric Lichtblau,Qwests Refusal of NSA Query is Explained, NEW YORKTIMES, (May 12, 2006); Ken Belson and Matt

Richtel, Verizon Denies Turning Over Local Phone Data,NEW YORKTIMES, (May 17, 2006).4 Verizon Maine cites, on the opening page of the May 19 Response, the comments of President Bush at his

December 19, 2005 acknowledging that warrantless surveillance of Americans is being done by the NSA,

though this undercuts Verizon Maines contention that the subject of the Commissions inquiry is itself a

secret.5

In an interview with National Public Radio, Senator Pat Roberts of Kansas acknowledged that the NSAwas collecting phone records of Americans without a warrant and that the program did not violate the

privacy rights of Americans. Thus, in one interview, Senator Roberts (who has been briefed on the


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program involving the collection of telephone communications information on ordinary

Americans without a warrant or even an articulable basis for suspicion. Both President

Bush and Senator Roberts have confirmed some aspects of news reports and denied

others. That cannot, though, be the end of the inquiry.

There is no justification for Verizon Maines refusal to answer questions about

how its actions have jeopardized the privacy rights of Maine telephone subscribers. The

MCLU hopes that the Commission will open a full investigation of Verizon Maines

actions and will demand substantive answers.

Very truly yours,

MAINE CIVIL LIBERTIES UNION

Zachary L. Heiden, Esq.

Staff Attorney401 Cumberland Avenue, Suite 105

Portland, Maine 04101

(207) 774-5444June 12, 2006

activities of the NSA and the phone companies) confirmed central elements at issue in the Commissionsinvestigation while denying others. Melissa Block, Senate Chair Readies For Hayden Hearings,

NATIONAL PUBLIC RADIO:ALL THINGS CONSIDERED, (May 17, 2006).

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