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Verizon and Government Seek Dismissal of Data-Mining Programs on Secrecy and Free Speech Grounds

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Verizon and Government Seek Dismissal of Data-Mining Programs on Secrecy and Free Speech Grounds
09-01-2007, 06:13 AM,
Verizon and Government Seek Dismissal of Data-Mining Programs on Secrecy and Free Speech Grounds
From Wired:


By Ryan Singel

Verizon and its government allies told a federal court judge Thursday that national security requires the dismissal of lawsuit accusing the phone provider of violating federal privacy laws by allegedly providing millions of phone records to a secret anti-terrorism data-mining program. Verizon also argues that the nation's telephone privacy laws interferes with the company's free speech rights.

Justice Department special counsel Anthony Coppolino argued that since the government has not confirmed or denied data mining call records, the program is a secret and the court needed to defer to the executive branch.

"On the call records program, there has been no executive branch confirmation of that program -- not by the President, not by the Attorney General, not by the Director of National Intelligence," Coppolino said. "That alone requires dismissal. It doesn't matter if the carriers were involved."

The presiding judge, Chief Judge Vaughn Walker of San Francisco's federal district court, rejected similar arguments for dismissal from AT&T and the government in a case argued last year. However, in that case, AT&T is accused, in part, of helping with warrantless spying on the contents of some international communications on Americans, which the government has admitted to.

Walker allowed the case to proceed, ruling the admission undercuts the argument that the very subject matter of the case is a "state secret."

The government and AT&T appealed that decision to the 9th Circuit Court of Appeals, which heard arguments in the case earlier this month.

The Verizon plaintiffs, who are seeking millions in damages, counter that news reports and statements from government officials ranging from lawmakers to Director of National Intelligence Michael McConnell confirm the existence of the call record program and Verizon's participation.

Laurence Pulgram of Fenwick and West, representing several ACLU groups, argued these ongoing revelations show that the court should be wary of dismissing a suit when more information keeps coming out.

"We have to be circumspect about any argument that information about the programs are a secret," Pulgram said. "We are not imagining things in saying that there is information in these blanket claims of privilege that the executive branch is free to disclose without great injury."

Coppolino told the court that those statements can't count as evidence since they didn't come from the executive branch, so weren't definitive.

Pulgram countered that lawmakers who were briefed on the program confirmed MCI (now owned by Verizon) turned over call records to the government.

"We disagree with the government's arguments that statements from knowledgeable Congressmen can't be admitted," Pulgram said.

Pulgram also suggested that his clients or even the membership of California ACLU groups be able to prove their standing by having MCI and Verizon check if any of their phone numbers were turned over the government, and publicly say "yes" or "no" but not who specifically

The government also denies the existence of a domestic content dragnet program that looks for keywords in domestic emails or phone calls.

"We made clear in our public record there is no content dragnet program," Coppolino said. "We put forward under oath a denial [and] there is nothing in the public record that remotely confirms a content dragnet."

That allegation forms the heart of a case called Shubert vs. Bush, which targets the government rather than a telecom.

Shubert's lawyer, Ivann Mazell, made an impassioned argument that the government was trying to overuse the state secrets privilege, which Mazell said must be balanced against Americans' constitutional rights.

"According to the government's arguments, there is nothing to stop the exec from putting a bug in every bedroom," Mazell said. "They believe there is a national security exemption to Fourth amendment. The court is here to set a limit on unchecked executive power."

Verizon lawyer Henry Weissmann argued that the privacy rules that largely bar phone companies from turning over records to the government were unconstitutional.

"Communicating information to the government would be speech. Providing information to law enforcement would be petitioning," Weissmann said. "The plaintiff say there was too much speech, that too many records were provided."

Barry Himmelstein, arguing for the MCI plaintiffs, said Verizon misconstrues the intent of the Electronic Communications Privacy Act, which it is accused of violating.

"The record prevention portion of ECPA has no other purpose than to prevent the companies from turning them over to the government," Himmelstein said.

Walker seemed unpersuaded by Verizon's challenge to the foundation of the nation's privacy laws, and in interests of time, prevented the ACLU's Ann Brick from presenting her arguments against Verizon's free speech claims.

The majority of the more than 50 anti-spying suits consolidated in Walker's courtroom are now on hold until the appeals court rules, but Verizon and the government moved to dismiss their case on the grounds that the earlier ruling did not apply to their case.

Judge Walker closed the two-and-a-half hour hearing without ruling, saying only to the lawyers that "I probably wonÂ’t see you all until we get some guidance from the Ninth Circuit."

OK, now does anyone else see something seriously wrong with that last sentence in the first paragraph?

Messages In This Thread
Verizon and Government Seek Dismissal of Data-Mining Programs on Secrecy and Free Speech Grounds - pizzaman777 - 09-01-2007, 06:13 AM

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