ACLU of Massachusetts Renews Call for Public Hearing into Role of Phone Companies in Illegal Domestic Spying

BOSTON - August 23 - Rejecting wildly overblown assertions that private phone companies can hide behind a “state secrets” argument, the American Civil Liberties Union of Massachusetts today said it has filed legal papers with the Massachusetts Department of Telecommunications and Energy (DTE) calling for a prompt public hearing on a May 2006 complaint against Verizon and AT&T for their reported role in facilitating illegal government spying on ordinary Americans.

“This case is about transparency and telling people the truth about what the phone companies are doing with our records,” said Carol Rose, Executive Director of the ACLU of Massachusetts. “Massachusetts residents have a right to know how the phone companies respond to requests for private phone records when there is no warrant or court order.”

The ACLU filing comes on the heels of a federal court ruling last Thursday that the Bush Administration’s program to monitor the phone calls and e-mails of Americans without warrants is unconstitutional and must be stopped. (www.aclu.org/safefree/nsaspying/index.html).

On May 24, the ACLU of Massachusetts filed a complaint on behalf of the mayors of Newton, Somerville, Chicopee, and Northampton, alleging that these phone companies enabled illegal government spying by turning over private details about Americans’ telephone calls to the National Security Agency (NSA) without proper warrants. The ACLU has requested that the DTE hold a public hearing on the mayors’ complaint that Verizon and AT&T disclosed call records of their Massachusetts customers without the customers’ knowledge or legal authorization. Both Verizon and AT&T have urged the DTE to dismiss the complaint on the grounds of state secrets.

“Private companies cannot invoke state secrets privilege – only the United States government can assert such a claim,” Rose said. “The DTE has a legal obligation to hold public hearings into whether the phone companies have violated their own policies, the law, or their customers’ right to privacy. Such a hearing should not involve state secrets. Instead, the hearing should focus on the specific question of how telecommunications companies in Massachusetts respond to government requests for private phone records where there is no warrant or court order.”

News reports have indicated that at least three companies – Verizon, BellSouth, and AT&T – have complied with warrantless requests from the NSA to turn over the calling records of millions of customers across the nation.

On June 30, USA Today reported that 19 lawmakers confirmed that the NSA has built a massive database of tens of millions of phone records to monitor Americans' calling patterns. USA Today also reported that five of those lawmakers confirmed that AT&T has participated in the program and stated that BellSouth did not. Three lawmakers stated that Verizon did not participate in the program but that its subsidiary, MCI, did.

Beginning in 2001, President Bush secretly authorized the National Security Agency to conduct electronic surveillance of people within the United States, including U.S. citizens, without a warrant. The ongoing surveillance program has been in direct violation of the Foreign Intelligence Surveillance Act (FISA), a federal law that requires the executive branch to obtain a warrant before engaging in electronic surveillance of Americans.

"There are clear inconsistencies in the information, statements, representations, and guarantees to the customers of Verizon and AT&T regarding the private status of their personal information," said ACLU of Massachusetts Legal Director John Reinstein. "In light of the reported disclosure of this information to the NSA, there are well-founded concerns that these companies have violated their own privacy policies – as well as violated state and federal regulations and laws that protect all customers. The DTE has a responsibility under Massachusetts law to investigate these violations of the privacy of Massachusetts customers."

Massachusetts law requires the DTE to hold a public hearing if a written complaint is filed on behalf of any Massachusetts mayor. The ACLU of Massachusetts filed its complaint and request for a hearing on behalf of Mayors David B. Cohen of Newton, Joseph A. Curtatone of Somerville, Michael D. Bissonnette of Chicopee, and Mary Clare Higgins of Northampton.

The ACLU filed its response just one day after the U.S. Department of Justice filed a federal lawsuit against officials of the Maine Public Utilities Commission and Verizon, seeking to stop Verizon from answering questions posed by the commission. The DOJ lawsuit also seeks to prevent any further investigation of Verizon’s collaboration with the National Security Agency Surveillance program. The DOJ filed a similar lawsuit in New Jersey last month.

In Vermont, Governor Jim Douglas is supporting a similar investigation, despite a threat from the federal government to sue the state, saying, :We don’t want this kind of intrusion into the privacy of Vermonters by anyone, by government, or by companies.”

In Connecticut, the Department of Public Utility Control – that state's equivalent of the DTE – denied Verizon's motion to dismiss a complaint from the ACLU of Connecticut, and has scheduled a hearing for September 6.

“No one – not the DOJ, the NSA or private phone companies – is above the law,” said Rose. "Government spying on innocent Americans without any kind of warrant and without Congressional approval runs counter to the very foundations of our democracy.”

For more information on the ACLU’s efforts to stop illegal spying: www.aclu.org/nsaspying. For copies of the DTE filings and additional information on the Stop the Abuse of Power campaign in Massachusetts: www.aclum.org/telephone_privacy.