Point Austin: Hanging Up on AT&T
My boss is suing the phone company bully for him
Now, thanks to those stalwart friends of liberty at the National Security Agency and AT&T Inc., the legendary 94-year-old Chicago writer and the notorious fiftysomething Austin Chronicle editor are linked in legal and perhaps civil liberties history. A couple of weeks ago each of them became named plaintiffs in separate class-action lawsuits filed against the giant phone company. In the Texas lawsuit, Black, the Chronicle, Texas Civil Rights Project director James Harrington, local attorney Richard Grigg, and local financial adviser Michael Kentor brought suit ("on their behalf and on behalf of all others similarly situated") to stop telecommunications giant AT&T from providing detailed phone records to the NSA "to enjoin this activity, recover damages, and hold AT&T accountable for its violations of federal and state law." The Illinois lawsuit, filed a few days later by the state ACLU, includes doctors, clerics, and elected officials as well as attorneys and reporters, and is argued in much the same terms that the NSA program reportedly analyzing data from millions of domestic phone calls, and the AT&T cooperation with that program, violates both federal and state laws intended to protect the privacy of U.S. citizens in their personal business.
Austin attorney Jim George, who is representing the Texas plaintiffs, points out that each of their professions has either legal or professional obligations to protect the privacy of their clients or sources. "We have federal and state laws designed to protect those people's rights to do what the law imposes on them" that is, to protect the privacy of those they represent or talk to. "We want to know if the phone company effectively gave [the NSA] the keys to the warehouse where all this information is stored" i.e., as the legal complaint describes it, "a complete listing of customer's calling history, including the phone numbers of customers, the phone numbers customers dial, the location from which each call originates, the length of each call, and the location where each call terminates."
The lawsuits spring initially from a May 11 report in USA Today that several national phone companies were paid by the NSA to provide the phone records, supposedly suitable for "data-mining" for potential patterns. Some of the companies have since denied cooperating with the feds. AT&T has been relatively coy, refusing to address the lawsuits directly, instead issuing a general statement: "We have an obligation to assist law enforcement and other government agencies responsible for protecting the public welfare, whether it be an individual or the security interests of the entire nation," the AT&T statement read. "It would be as irresponsible for AT&T to refuse to assist in protecting the country when the law allows or requires it[,] as it would be for AT&T to provide such assistance when the law forbids it."
Follow the Law
The problem for AT&T, according to Jim George, is that absent a warrant or a court order several federal and state laws indeed do "forbid" the sort of data transfer that the company apparently made to the NSA. For example, the 1986 Electronic Communications Privacy Act specifically declares that phone companies "shall not knowingly divulge a record or other information pertaining to a subscriber or customer ... to any government entity," with financial penalties for each and every violation. "Congress and the Legislature said, 'You can't do that,'" said George. "If they think that law is wrong, they need to do what everybody else has to do go to Congress and the Legislature and get it changed." Concerning similar lawsuits there are a slew of these accumulating across the country the NSA is pleading "state secrets," but the Texas plaintiffs are not asking for details of the NSA program or indeed even to reveal what information has been provided. "We don't need to know that," says George, "that's not relevant. If somebody was given the keys to the warehouse, that's all we need to know, because that violates the law."
AT&T's case is also undermined by the reported refusal of Seattle-based Qwest Communications to provide phone records on its customers when asked by the NSA, because the agency refused to request a court order.
"Everybody in the U.S. is required to follow the laws as written," said George. "If the president and the NSA think they need this information, then they need to ask a FISA [Foreign Intelligence Surveillance Act] court, or some court, to grant them the authority to get it. Everybody has to play by the same rules."
Enough Is Too Much
Of course, the Bush administration has made a major industry of devising self-defined "legal" ways of evading the law as written attorney general opinions, legislation "signing statements," peremptory executive orders, and so on. Most are simply elaborate variations on the classic Nixonian definition of the imperial presidency: "If the president does it, it's not against the law." Just as Nixon (and his bipartisan successors) have used "national security" to excuse the steady erosion of constitutionally guaranteed liberties, Bush has used the boundless "war on terror" to excuse any and all assaults on personal privacy. If the information is available, they want it whether or not it will actually produce useful intelligence, and whether or not it is legal to obtain.
Since the pending lawsuit asks for financial damages regarding every single phone call monitored, some of us at the Chronicle are dreaming what we will do with all that moolah AT&T will have to fork over when it loses the suit. (Actually, split several million ways, it wouldn't amount to much per person.) More seriously, we're honored to stand with Louis Black, Jim Harrington, Robert Scheer, Studs Terkel, the Electronic Frontier Foundation, the ACLU, and hundreds of other citizens who are telling the phone company and the government that enough is enough. You wanna know who I'm talking to on the phone? Get a warrant.