As many people may know, Verizon is one of the phone companies currently being sued over its alleged disclosure of customer phone records to the NSA. Last week, Verizon filed a response to the court in which it asks for the entire case to be thrown out – on free speech grounds.
The response alleges that the case should be thrown out because even looking into the issue could violate state secrets. However, Verizon’s response also tries to make the case that Verizon has a First Amendment right to “petition” the government. “Based on plaintiffs’ own allegations, defendants’ right to communicate such information to the government is fully protected by the Free Speech and Petition Clauses of the First Amendment,” argue Verizon’s lawyers.
Essentially, the argument is that turning over truthful information to the government is free speech, and the EFF and ACLU can’t do anything about it. “Communicating facts to the government is protected petitioning activity,” says the response, even when the communication of those facts would normally be illegal or would violate a company’s owner promises to its customers.
If Verizon’s arguments fail, the Bush administration is already preparing to ask Congress for retroactive immunity for all telecommunications companies that assisted the government after September 11, 2001. The government is also fighting hard in court on behalf of the phone companies, filing repeated briefs which claim that “state secrets” trump even the legality of the alleged security programs. The administration’s new appropriations request for intelligence agencies was recently disclosed at a hearing of the Senate Select Committee on Intelligence, and it includes a massive immunity grant to the phone companies who have been helping the NSA and other goverment agencies. Buried deep in the request is the following:
Notwithstanding any other law, and in addition to the immunities, privileges, and defenses provided by any other source of law, no action shall lie or be maintained in any court, and no penalty, sanction, or other form of remedy or relief shall be imposed by any court or any other body, against any person for the alleged provision to an element of the intelligence community of any information (including records or other information pertaining to a customer), facilities, or any other form of assistance, during the period of time beginning on September 11, 2001, and ending on the date that is the effective date of this Act, in connection with any alleged classified communications intelligence activity that the Attorney General or a designee of the Attorney General certifies, in a manner consistent with the protection of State secrets, is, was, would be, or would have been intended to protect the United States from a terrorist attack.
Of course, this language would insulate the phone companies, but it would not prevent suits against the government for its conduct.
The issue of whether any of this behavior was legal is not important. The government has already argued that legality doesn’t matter when it comes to the phone companies, since even a ruling that their actions were illegal would expose the existence of the intelligence-gathering program in question. Therefore, such cases should not even be considered by the courts.
The EFF and others argued that communications privacy laws had been violated, but the government countered by claiming that a “state secrets” privilege meant that the cases should simply be thrown out. Though some cases were dismissed, the EFF’s case against AT&T continues, though it would also be dismissed if the proposed new legislation passes.
However, by moving to dismiss the first lawsuit filed over the NSA’s activities, the Administration is asking US citizens and residents to take it at its word that our privacy and constitutional rights are being safeguarded. With the executive branch being resistant to any sort of oversight or inquiry from either of the other two branches of government, it is difficult at best for many Americans to extend the administration the trust it is seeking.
Along the secrets line, most of the evidence in the lawsuit is being held under seal, as AT&T says that it contains detailed information related to “the technical structure of the AT&T telephone networks,” the disclosure of which would jeopardize its business.
This is the height of arrogance. The government asks the telecommunications companies to disclose information about customers which violates the Communications Act of 1934, the more recent Electronic Communications and Privacy Act, and the 1986 Stored Communications Act and the telecommunications companies comply.
When this conduct is called into question, AT&T argues that the technical structure of its networks is secret which should not be disclosed. Likewise, the government is claiming state secrets protection. So, the companies can disclose customers’ secrets to the government in violation of at least two federal laws, customer contracts and, in my opinion, the Constitution, but when those whose rights were violated seek redress neither the telecommunications companies nor the government are willing to defend their conduct and argue that their secrets should not be revealed. This is the height of arrogance. In other words, it’s okay for us to disclose your secrets, but don’t ask us to reveal ours.
Things like this make me so angry.
Here’s the flip side. If Verizon wins its argument, it seems to me that Verizon (and other corporations) would then have a very difficult time enforcing its own Non-Disclosure Agreements (NDAs) it has with its employees. How stupid would Verizon look arguing the opposition position against a former employee. So, if Verizon wins this motion, I would love to see a former employee start disclosing – in a loud and public way – lots of Verizon’s internal secrets. According to Verizon’s argument, it would not be able to enforce the NDA so long as the former employee’s statements are truthful.