Corporation Lawyers and Public Privacy

The National Security Agency's request for phone-company billing records raises many questions. Among them: What are the responsibilities of corporate counsel when the government seeks confidential data?

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Today, a federal judge in Detroit hears arguments on the legality of the National Security Agency's warrantless surveillance program. The American Civil Liberties Union has sued the NSA over a program that taps phone calls originating in the United States. The ACLU says the program violates people's free speech and privacy.

And there is a separate lawsuit pending over another NSA program. A lawyer in New Jersey is suing phone companies for allegedly giving the government millions of Americans' calling records. When the government comes looking for that information from phone companies, company lawyers are the ones who handle that request, and this morning NPR's Ari Shapiro report on the role those lawyers play.

ARI SHAPIRO reporting:

Andy Littman is a Washington lawyer who's represented phone companies for nearly 30 years, although he's not representing any of the companies in the NSA cases. He says some of America's larger phone companies have whole departments devoted just to handling government requests for private information.

Mr. ANDY LITTMAN (Attorney): There are people with security clearance. Oftentimes they worked in some of the law enforcement agencies. My experience is that in the vast majority of instances carriers bent over backwards to try to be responsible corporate citizens.

SHAPIRO: Meaning they generally error on the side of helping the government. But since 9/11, two opposing trends have cornered phone companies. The government is seeking more information than ever before, and at the same time, consumers are more protective of their privacy than ever before.

Professor PETER SWIRE (Ohio State University): It's a hard place to be, to be the phone company lawyer.

SHAPIRO: Peter Swire teaches law at Ohio State University.

Prof. SWIRE: You want to help the government in the war against terrorism and the fight against crime, but you face legal liability, and in some cases even personal liability for criminal activity if you wiretap where you're not allowed to do it.

SHAPIRO: And if you refuse to give the government the information it wants, the consequences could be even worse. Susan Hackett is senior vice president of the Association of Corporate Counsel.

Ms. SUSAN HACKETT (Senior Vice President, Association of Corporate Counsel): Certainly phone companies, like many other companies, rely on the government for, not only significant portions of business, but a relationship on a regulatory basis that is key to their continued success, and even their ability to operate as an entity.

SHAPIRO: So when the government comes with a request for information about lots of people, and the legality of the program is unclear, what's a lawyer to do?

Professor STEPHEN GILLERS (Professor of Law, New York University): What a lawyer must do then is predict what courts will say.

SHAPIRO: Stephen Gillers teaches legal ethics at NYU. He says a company shouldn't take the government's legal argument as fact. It has to go to the books and reach its own conclusion.

Prof. GILLERS: The general counsel of the company will want to look at the government's authorities, do his or her own investigation, perhaps get outside advice from an outside law firm, and come to an independent conclusion, which could turn out to be the same as the government's, but you would not rubberstamp and just concede that the government is correct.

SHAPIRO: According to the original USA Today report on the data mining program, the phone companies reached different conclusions. While Qwest apparently refused to cooperate, Verizon, AT&T and Bell South went along with the NSA requests. None of the companies would speak on tape for this story.

One possible explanation for the company's different conclusions may come from the people who made the decisions.

Mr. CHIP BABCOCK (Partner and Attorney, Jackson Walker LLP): No lawyer approaches a problem just having been put on the earth five minutes before the problem arose.

SHAPIRO: Chip Babcock is a First Amendment lawyer in Texas.

Mr. BABCOCK: Everybody has a background. Everybody has a way of looking at things. The good lawyers are the ones that don't let their ideology interfere with their advice.

SHAPIRO: Babcock says every day businesses face questions that have no easy answers, and what the right answer is may only become apparent after a judge issues it in the form of a ruling.

Ari Shapiro, NPR News.

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