ACLU Uses Phone Privacy Laws to Challenge Government

The American Civil Liberties Union is trying to use state telephone privacy laws to determine whether the federal government violated subscriber's rights with its domestic surveillance programs.

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The American Civil Liberties Union is demanding more information about domestic surveillance by the National Security Agency. The organization says if the federal government won't investigate, state public utilities commissions must examine whether telephone privacy laws were violated.

But regulators may not be eager to get involved with an issue that the Bush administration has declared off limits. NPR's Larry Abramson reports.

LARRY ABRAMSON reporting:

ACLU affiliates in 20 states are filing complaints with public utilities commissions demanding an investigation into the extent of NSA surveillance. ACLU Executive Director Anthony Romero says, at the same time the group is asking the Federal Communications Commission to step up to the plate.

Mr. ANTHONY ROMERO (Executive Director, American Civil Liberties Union): We think that the public utilities commissions obviously have jurisdiction over this issue, that there is kind of a central division of labor between the FCC and the PUC's about questions of long distance and local carriers.

ABRAMSON: The ACLU effort is trying to fan the flames of a consumer rebellion that has already begun to catch fire. Even before recent reports that the NSA was monitoring domestic calling records, consumers in Maine filed a complaint with their public utilities commission.

They demanded to know whether telecom companies had violated privacy laws by helping the NSA monitor their communications. In Massachusetts, the ACLU has enlisted the support of small town mayors, like Michael Bissonnette of the town of Chicopee.

Mayor MICHAEL BISSONNETTE (Mayor or Chicopee, Massachusetts): It's not necessarily a local issue that I, as a mayor, would normally deal with; but then, I'm not required to leave my conscience at my house when I come into city hall everyday.

ABRAMSON: Bissonnette has special clout, because mayors in Massachusetts have the power to petition for a hearing by the Public Utilities Commission. Bissonnette says he wants local authorities to take a peek behind the secrecy that has protected the NSA program from scrutiny.

Mayor BISSONNETTE: The real question here is, if the Bush administration thinks it's in the right and that they have a valid national security purpose, then they should be straightforward and come out to the American people and say we want your phone records.

ABRAMSON: But regulators may well be reluctant to take on this issue. The federal government has been invoking the State Secrets Privilege, most recently in a California case saying the suit must be quashed because it could threaten national security.

Diane Munns, President of the National Association of Regulatory Utilities Commissioners, says her members have been getting complaints from consumers, so she asked them what they plan to do.

Ms. DIANE MUNNS (President, National Association of Regulatory Utilities Commissioners): I think most of the states who are looking at it had made at least an initial determination that they were not going to take further action on it. I think that states are very sensitive to the national security concerns.

ABRAMSON: There are state laws that are supposed to protect the privacy of telephone subscribers. But Munns says most state regulators feel those laws are intended to protect consumers against the commercial sale of their phone numbers to marketers, not against searches for national security purposes.

At least one member of the Federal Communications Commission thinks his agency should be able to start a probe of the matter. But the chair of the FCC, Kevin Martin, told Congress this week that he is unable to proceed because, he said, the Commission has no power to demand the release of highly classified information.

Meanwhile, the ACLU goes to court in Detroit next month as part of another action against NSA spying. The government has signaled it will move to dismiss that suit, as well, because of national security concerns.

Larry Abramson, NPR News, Washington.

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