John M.R. Paterson 207 228-7212 direct jpaterson@bernsteinshur.


THIS IS A VIRTUAL DUPLICATE OF THE ORIGINAL HARDCOPY SUBMITTED TO THE COMMISSION ON 6/30/06 IN ACCORDANCE WITH ITS ELECTRONIC FILING INSTRUCTIONS. August 4, 2006 Dennis Keschl, Acting Administrative Director Maine Public Utilities Commission State House Station 18 242 State Street Augusta, ME 04333 Re: MAINE PUBLIC UTILITIES COMMISSION Request for Commission Investigation into Whether Verizon is Cooperating in Maine with the National Security Agency’s Domestic Wiretapping Program Docket No. 2006-274

Dear Mr. Keschl: I write on behalf of the Maine Civil Liberties Union in response to a letter I received yesterday from Assistant Attorney General Peter Kreisler of the U.S. Department of Justice expressing the view of the federal government that the Commission may not undertake the investigation requested by the Complaint in this matter. I also learned yesterday that this matter is on the Commission’s agenda for consideration on Monday August 7. In light of the time constraints I request that this matter be delivered to the Commission immediately. Under the circumstances, time does not permit a complete response to the extensive comments in or attachments to Mr. Kreisler’s letter. However, I did not want our silence to be interpreted as an expression of agreement with his arguments. At this point in the proceedings the Commission has been supplied with a multitude of arguments and copies of recent relevant decisions and little purpose is served by restating all that is set out in those filings. However, a few essential points must be made. At its core, the argument of the federal government and Verizon is that federal law trumps the

August 4, 2006 Page 2 of 3 constitutional rights of those people in Maine who use Verizon for telecommunications service. Relying on a number of federal laws, and a federal common law evidentiary privilege covering so-called “state secrets,” it is the clear position of Verizon and the Department of Justice that they may do as they please with respect to the sharing of telephone user records without regard to the limits of the U.S. Constitution. We categorically reject that argument. Indeed, taken to its logical extension, the federal government claims the power to do as it pleases and insulate itself from inquiry into violation of citizens’ rights merely by an invocation of national defense or security. That is not and must not be the law. Moreover, the opponents of this Complaint repeatedly overstate what is sought by it. Nothing in the complaint seeks the disclosure of classified information or information that would compromise national defense. Further, the contention by Verizon and the DOJ that the mere disclosure of the fact that Verizon had provided user records to the NSA or other agency would compromise national defense, is belied by the thoughtful recitation of the facts in the decision of the U.S. District Court in Hepting v. AT&T. In that case the Court thoroughly reviewed the extensive public disclosures of the federal government’s telecommunications record gathering. In view of those public statements, including statements by the President, the continued assertion that a limited inquiry into the conduct of Verizon would harm national security is simply ludicrous. Further, the position of Verizon and the government tortures logic. If Verizon has not shared user records with the NSA or other agency, all it need do is say so. Nothing in any federal law prevents Verizon from saying “We did not do it.” Nothing in such denial, assuming it is true, would violate any law. If on the other hand, Verizon did engage in such record sharing, all we seek are answers to the following questions: (1) Did Verizon disclose customer telephone records to a governmental entity? (2) If it did disclose customer records, did it do so voluntarily and if so was it paid to make the disclosures? (3) What was disclosed? (e.g. the names, telephone number and addresses of the caller and the person called, the date, time of day, the length of the call or communication, the content of the communication, etc.) (4) Did customers consent to the disclosures, and if so how was the consent obtained? (5) If customers did not consent, what legal document (e.g., warrant, court order, certification or subpoena) was provided to the company to authorize disclosure and on what statute did it rely? In seeking answers to these questions the Commission need not be concerned in any way with any governmental practices. This complaint does not seek information as to the content of information gathered, merely as to the fact of such activity, the type of information disclosed and the purported legal basis for it, if any. All that is at issue are Verizon’s practices. For purposes of both Maine law and the Electronic Communication Privacy Act, it is entirely irrelevant to whom this information was disclosed by Verizon or the content of any disclosed communications; all that is relevant is whether or not the recipient of records was a governmental entity, not which governmental entity received

August 4, 2006 Page 3 of 3 records, the purpose of the disclosure or the government’s subsequent use of the records. It is also notable that in its argument the government choses to simply ignore the federal Electronic Communication Privacy Act, 18 U.S.C. § 2702. It is as much the law of the land, and is as binding on Verizon and the U.S. government as are those laws relied on by the Department of Justice. It is as much the supreme law of the land as the other laws cited by the DOJ. We urge the Commission not to be swayed by threats of litigation from the Department of Justice. What would be a greater harm is if the Commission determined that it would not undertake its duty to attempt to protect the statutorily and constitutionally protected rights of Maine citizens, simply because it feared a lawsuit. After all, if the Commission will not make this inquiry, who will? If in the end the government believes it must initiate suit, then the courts will decide the matter. Based on the foregoing, the MCLU strongly urges the Commission to undertake the requested inquiry. Very truly yours,

John M.R. Paterson cc: All Parties per Commission Service List Assistant Attorney General Peter D. Kreisler Deputy Attorney General Linda Pistner