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State seeks information on call data collection
[June 05, 2006]

State seeks information on call data collection

(Spokesman-Review, The (Spokane, WA) (KRT) Via Thomson Dialog NewsEdge) Jun. 3--OLYMPIA -- If phone companies in Washington are secretly providing customer calling information to the National Security Agency, state regulators believe people would probably like to know that.

But it's unclear whether the state can make the phone companies or the federal government reveal such information.

That's the dilemma faced by the state Utilities and Transportation Commission, which decided this week to start gathering comments and questions to discuss a potential investigation at a July 12th meeting.

The American Civil Liberties Union of Washington has asked the commission to investigate newspaper stories suggesting that the NSA is routinely getting information about who calls who. The state attorney general's public counsel section is also urging the commission to look into the matter.

But at a hearing Wednesday, two of the nation's largest phone companies told the commissioners that they can neither confirm nor deny any such cooperation.

"I'm quite sure there's no way the commission can collect the relevant information," said David Carpenter, a Chicago lawyer representing AT&T. "...There are federal prohibitions on the disclosure of classified state secrets."

The number-tracking program was first mentioned in a New York Times article in December, then again in a USA Today story May 11th. Since then, more than 20 lawsuits have been filed against phone companies, most alleging that they violated privacy and telecommunications laws. Nearly two dozen utility commissions have also been asked to look into the allegations.

But in the first lawsuit, filed in January in federal court in San Francisco, the government is seeking to intervene and have the case dismissed. It cites the "military and state secrets privilege," which, according to Carpenter, dates back to at least the mid-1800s. It's designed to prevent private lawsuits from revealing information that harms the country or its intelligence-gathering.

"This is a privilege that can only be invoked in extraordinary situations," Carpenter told the state utility commissioners. "...We can't waive the state secrets provision that's been asserted by the United States. And it's a felony for us to provide classified information to third parties."

The Federal Communications Commission has been unable to investigate the allegations because federal law prohibits access to the classified information that would be required, Carpenter said. The same law would apply to Washington's UTC, he said, and federal law trumps state law.

"It's very clear that the United States does not want any of this evidence disclosed," Carpenter said.

Doug Klunder, director of the state ACLU's privacy project, said there's a way around the state-secrets issue. He said the UTC should simply ask phone companies whether they have provided calling records to any third party.

Similarly, Verizon general counsel Gregory Romano said his company cannot confirm or deny participation in a classified NSA program. Nonetheless, the company appears to deny at least past participation in a statement issued May 16. It lists the company's major businesses -- wireless, landline phones, long-distance service, Internet and directories -- and says "None of these companies -- wireless or wire-line -- provided customer records or call data."

Verizon's statement also disputes allegations that even simple cross-town calls are being tracked.

"In fact, phone companies do not even make records of local calls in most cases, because the vast majority of customers are not billed per call for local calls," the company said. "... the claim is just wrong."

Utility commission Chairman Mark Sidran on Wednesday called the issue one of "broad interest and concern to the people of Washington." But he said he wants more information before the commission discusses what to do July 12th.

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