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Monday, November 12, 2007

An Overview of Telecommunications Companies' Involvement in Domestic Espionage: Part I

by: Joseph Eros, Associate Editor, MTTLR

In May 2006, USA Today reported that several of the USA’s largest telecommunications companies had been turning over information on "billions of domestic calls" to the National Security Agency (NSA), giving the agency "a secret window into the communications habits of millions of Americans."1 USA Today’s detailed report confirmed earlier revelations by the New York Times of ongoing monitoring of domestic telephone calls.2 The exact extent of the monitoring remains unclear (not surprisingly for a highly-classified program); USA Today later reported that it could not "confirm that BellSouth or Verizon contracted with the NSA to provide bulk calling records" although it did confirm AT&T’s involvement.3

Because the calls were mostly between US citizens within the USA, the US government would need a warrant in order to monitor them. The Foreign Intelligence Surveillance Act (FISA), 50 USC 1801 et seq, allows warrantless surveillance of the electronic communications of agents of foreign powers either within the USA or outside of it, but a secret FISA court must approve a warrant in order for the communications of a US citizen within the USA to be surveilled.4

Within a few months, over 40 lawsuits had been filed against the major telecommunications companies, mostly by civil liberties groups. Most of these suits were later consolidated into one action in the Northern District of California.5 The plaintiffs alleged that the NSA surveillance was in violation of the Electronic Communications Privacy Act (ECPA), 18 U.S.C. § 2702(a)(1),6 Federal laws against eavesdropping on wire and radio communications (18 U.S.C. §§ 2511)7 and (47 U.S.C. § 605),8 and FISA,9 as well as the privacy laws of all 50 states and the District of Columbia.10

The activists sought statutory damages (for example, the ECPA specifies damages of "no less than $1,000 for each aggrieved Plaintiff or Class Member" (18 U.S.C. § 2707),11) as well as an injunction "restraining Defendants from continuing to make such unlawful disclosures."12 This consolidated action awaits further developments in an earlier suit against AT&T’s disclosures to the NSA, Hepting v. AT & T Corp.13 The government sought dismissal of the Hepting claims based on the state secrets privilege. If information about which call records were disclosed and how the information was gathered could not be presented in court due to its potential to reveal US intelligence methods, the plaintiffs would be unable to prove their claims, and AT&T would be unable to defend itself.14 This argument succeeded for the government at AT&T in Illinois, where a lawsuit over the alleged disclosures to the NSA was dismissed in July 2006.15

But in California’s Northern District it failed: Judge Walker held that the
subject matter of this action is not a 'secret' for purposes of the state secrets privilege and it would be premature to conclude that the privilege will bar evidence necessary for plaintiffs' prima facie case or AT & T's defense. Because of the public disclosures by the government and AT & T, the court cannot conclude that merely maintaining this action creates a 'reasonable danger' of harming national security.16
The suits could continue, with classified evidence handled by personnel with security clearances following special procedures.17

Unsurprisingly, the Federal government and AT&T appealed. The Ninth Circuit heard arguments on August 15, 2007, and "repeatedly pressed Gregory Garre, the Bush administration's deputy solicitor general, to justify his requests to toss out the suits on grounds they could endanger national security."18 No ruling is expected for months.

Editor: Part II will publish tomorrow. It will address evidence of telecommunications companies' involvement in warrantless NSA espionage, and dissect the debate over whether to extend immunity to those companies.

1   Leslie Cauley, NSA has massive database of Americans' phone calls, USA Today, May 11, 2006, available at http://www.usatoday.com/news/washington/2006-05-10-nsa_x.htm.
2  James Risen and Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. Times, December 16, 2005, available at http://www.nytimes.com/2005/12/16/politics/16program.html.
3  A Note to Our Readers, USA Today, June 30, 2006, available at http://www.usatoday.com/money/industries/telecom/2006-06-30-nsa_x.htm.
4  U.S. citizens traveling abroad can have their calls monitored with no warrant required, only the Attorney General’s approval. See U.S. v. Bin Laden, 126 F.Supp.2d 264, 279 (S.D.N.Y. 2000).
5  See In re National Sec. Agency Telecommunications Records Litigation, 444 F.Supp.2d 1332 (Jud. Pan. Mult. Lit. 2006).
6  Master Consolidated Complaint Against Defendants AT&T Mobility et al. for Damages, Declaratory and Equitable Relief at ¶90, In re Nat. Sec. Telecommunications Records Litigation, MDL-1791, No. 06-1791 (VRW), 2007 WL 668730 (N.D. Cal. Jan. 16, 2007).
7  Id. at ¶118.
8  Id. at ¶125.
9  Id. at ¶133.
10  Id. at ¶260.
11  Id. at ¶102.
12  Id. at ¶128.
13  439 F.Supp.2d 974 (N.D. Cal. 2006).
14  Id. at 985.
15  Terkel v. AT & T Corp., 441 F.Supp.2d 899 (N.D. Ill. 2006).
16  Hepting v. AT&T, 439 F.Supp.2d at 994.
17  Id. at 1010-11.
18  Declan McCullagh, Appeals court may let NSA lawsuits proceed, CNET News.com, Aug. 15, 2007, http://www.news.com/Appeals-court-may-let-NSA-lawsuits-proceed/2100-1028_3-6202865.html.

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