December 2008 — The Oregon Public Utility Commission has dismissed the ACLU of Oregon’s inquiry into whether Verizon illegally turned over the private calling records of Oregon telephone customers to the National Security Agency.
For nearly three years, the ACLU has asked Verizon to be forthcoming in telling us whether it allowed the NSA to illegally invade the privacy of Oregon telephone customers.
“Oregonians still deserve to know if Verizon broke the law and gave the private, personal calling records of Oregon customers to the NSA,” said David Fidanque, Executive Director of the ACLU of Oregon.
Early in the case, another company was forthcoming. Embarq (formerly United Telephone Company of the Northwest dba Sprint) informed the ACLU of Oregon by letter in September 2007 that “it is not United’s policy to provide, nor has it actually provided, customer call detail information or access to customer calls, i.e. wiretapping, to any government agency or third party in the absence of subpoena, warrant or court order requiring us to do so.”As a result of that letter, ACLU dismissed Embarq from the current proceedings.
Later in the long-running case, the PUC dismissed another company, Qwest, from the case, though Qwest never disclosed whether or not it had turned over information to the NSA.
Qwest and Verizon could have been as forthright as Embarq, but chose to cloak their actions from public scrutiny.
The case against Verizon had been held in abeyance by the PUC for nearly two years while a group of similar cases was pending before the Ninth Circuit Court of Appeals. Those opposing disclosure argued that they were protected by the so-called “state secrets” doctrine. ACLU had argued that the case should be allowed to move into the discovery phase, but the PUC refused to permit that.
Then last summer, on July 10, 2008, Congress passed and the President signed into law new amendments to the Foreign Intelligence Surveillance Act of 1978 that prohibit an investigation by a state agency into allegations that a telecommunications company offered “assistance to an element of the intelligence community.”
In leading up to the PUC’s dismissal of the complaint, the ACLU argued that it is not a “state agency” and that this was not an “investigation” but rather an inquiry.
However, in its final action in the case, the PUC said that it had “no authority to compel Verizon” to respond to the inquiry. “The Complaint must be dismissed,” the PUC concluded.
While our individual case has ended, the ACLU of Oregon will continue to work with the National ACLU to push the Obama Administration and Congress to end warrantless surveillance and to stop using the “state secrets” doctrine to shield illegal and unconstitutional actions of the government from judicial challenge.
ACLU cooperating attorneys on this case were Keith Dubanevich and Mark Friedman of Garvey Schubert Barer.