Anticipating that the U.S. federal government would invoke the so-called "state secrets" privilege to block any lawsuit calling for the disclosure of details about allegations that phone companies shared customer records with the government's biggest spy agency, a major civil rights group has embarked on an alternate course.
The American Civil Liberties Union (ACLU) has filed complaints in more than 20 individual states demanding that their utility commissions and attorneys general convene public hearings and call phone company executives to testify.
The ACLU action in Massachusetts is typical of the approach being taken by the civil rights group. Carol Rose, executive director of the ACLU in Massachusetts, said four mayors had complained to the state's utility regulatory board, where. State law requires the board to conduct public hearings when a mayor complains.
"This is likely the greatest invasion of consumer privacy in our nation's history," he said.
The ACLU filed similar complaints in Arizona, Colorado, Connecticut, Delaware, Florida, Iowa, Kansas, Missouri, Nebraska, Nevada, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia and Washington.
A full-frontal legal assault on the National Security Agency would likely hit the brick wall of the "state secrets" doctrine - through which the government is able to keep sensitive cases from ever coming to trial because public disclosures would compromise national security. Once rarely used, the state secrets privilege has become one of the staple defenses used by the Bush Administration to maintain secrecy.
As the ACLU filed its state complaints, it also launched a nationwide campaign to encourage citizens to make their utility commissions aware of their privacy concerns. This campaign is being conducted through an online complaint form available at the ACLU website (www.aclu.org).
The group is also running full-page ads in eight large-city newspapers asking the public to join the complaints. The ads claim that telecommunications companies including "AT&T, Verizon and Other Phone Companies May Have Illegally Sent Your Phone Records to the National Security Agency."
The ACLU said its complaints were filed in the states of Arizona, Colorado, Connecticut, Delaware, Florida, Iowa, Kansas, Massachusetts, Missouri, Nebraska, Nevada, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia, and Washington.
Ads were taken out in newspapers in Portland, Oregon, Seattle, Washington, New York City, New York, Philadelphia, Pennsylvania, Chicago, Illinois, Miami, Florida, Boston, Massachusetts, and San Francisco, California.
The civil rights group has also asked the U.S. Federal Communications Commission (FCC) to reconsider its recent decision not to investigate the alleged provision of tens of millions of telephone records to the National Security Agency (NSA). The NSA is the largest of the government's spy agencies and both the creator and executor of the massive program.
The phone-records issue was exposed after a newspaper, USA Today, reported the program on May 11. It charged that three major national phone companies -- AT&T, Verizon, and BellSouth -- had turned over the call records of millions of Americans to the US government in the wake of the Sept. 11 attacks.
President George W. Bush and other administration officials have neither confirmed nor denied the USA Today report that the NSA is collecting the calling records of ordinary Americans in its effort to detect the plans of al-Qaida and other terrorist organizations. But Bush has said the administration's anti-terrorism surveillance programs are legal and constitutional.