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The June 23 Procedural Order (1) expressed concern about “whether certain federal statutes and/or the so-called ‘state secrets privilege’ will prevent… obtaining relevant information in the course of a Commission investigation” and (2) stated the Commission seeks recommendations from Verizon, and invited recommendations from the OPA, the MCLU, and the lead complainant, “about the process the Commission should take to resolve whether federal law precludes an investigation into” whether the complaint implicates Section 7 of Chapter 290, §7101-A(1), and §7101-A(2).
As lead complainant, and on behalf of the other 21 original complainants, I recommend:
1. That the Commission follow the process the Vermont Commission and Department of Public Service have taken in opening the adjudicatory investigation into the issues raised by the ACLU of Vermont’s complaint and the Department’s petition, which are the same as the issues the complainants raised in this case.1
2. That the Commission review and give consideration to the many suggestions for dealing with federal secrecy statutes and NSA classification and DOJ
The Commission’s order, in Vermont PSB Docket N0. 7192, which opened the investigation, is attached.
Recommendations of the Lead Complainant, Docket No. 2006-274 State Secrets issues, and for the Commission to take action in this case, that are contained in the comments on Verizon’s response to the complaint and in the letters opposing Verizon’s request to rebut them.
3. That, for the reasons stated in the comments on Verizon’s response to the complaint, the concern about the possibility of the Justice Department intervening and asserting the State Secrets privilege not be a factor in the Commission’s consideration on whether to open an adjudicatory investigation of the complainants’ privacy concerns in this case, or for that matter in its conduct of the investigation. As the MCLU’s comments pointed out, because the State Secrets privilege is an evidentiary privilege and not a grant of immunity, the privilege is one that can apply to specific evidence, but not serve to block all inquiry or to completely shut down the case. Furthermore, as the lead complainant’s comments mentioned, central facts that bear on this case are not secrets: the president, his attorney general, the chairmen of the Senate’s Intelligence and Judiciary Committees have each publicly acknowledged - and defended - the collection by the NSA of telephone communication information on ordinary American citizens, without warrants.
4. That the Commission give consideration to the fact that the only call and email records of Verizon’s customers in Maine that may be classified are records already in NSA’s possession. Therefore Verizon’s responses to questions about any other call and e-mail records cannot be classified. 2
Recommendations of the Lead Complainant, Docket No. 2006-274 (Some responses to the data request served on Verizon by the Commissioner of the Vermont Department of Public Service are good examples.) 2
5. That until the Commission opens an adjudicatory investigation in this case it direct its staff to commence serving Verizon with data requests that ask at least some of the questions in the “Highly Classified” section of the lead complainant’s comments on Verizon’s response to the complaint.
6. That the Commission consider holding Verizon in contempt for failing to obey the presiding officer’s May 15 procedural order, which stated: “The Commission requests that Verizon address, in its response to the complaint, the extent to which the actions alleged in the complaint and in the USA Today article implicate the privacy rights of Maine telephone service subscribers described by 35-A M.R.S.A. § 7101-A.” Verizon’s assertions that it can neither confirm nor deny its involvement with NSA in Maine and that the State Secrets privilege would trump §7101-A is not what the Commission requested Verizon to address in its response, it does not even come close, and the Commission should not accept it.
7. That the Commission open an adjudicatory investigation and assign an Advocate Staff to assist in the investigation of the issues in this case, and that the Advocate Staff include the members of the Commission’s telephone
The DPS data request and Verizon’s responses are attached to these recommendations.
Recommendations of the Lead Complainant, Docket No. 2006-274 staff who have the most experience with and knowledge of Verizon’s operations and local exchange and interoffice networks in Maine.
8. That the Commission retain consultants with established expertise in the design, operation, and software of Verizon’s Lucent and Nortel host and tandem switching machines in Maine, who will be necessary to assist the Commission in determining if Verizon has provided NSA access to any of those switches, especially to its Nortel DMS 200 tandem switch.
9. That, in addition the statues identified in the June 23 procedural order as possibly being implicated by the complaint, the Commission consider Verizon e-mail response #3 in the complaint, which states the company is unaware of any statute that would prohibit it from giving a government agency access to its switching machines, and consider whether 15 M.R.S.A. §709-713 are implicated if the Commission finds Verizon has provided NSA access to its switches in Maine.
10. That, if the Commission telephone staff’s caseloads are too large or demanding to investigate the issues in the complaint, the Commission consider hiring consultants and asking the Maine Attorney General to intervene in this case.
11. That the Commission give due consideration to the number of persons on the Service List for this case, approximately 30 so far, who have requested 4
Recommendations of the Lead Complainant, Docket No. 2006-274 either complainant or interested person status; and to the 362 Maine citizens on a list submitted by the MCLU, who indicated their concern about NSA’s warrantless domestic wiretapping program; and to the hundreds and possibly thousands of other Verizon customers in Maine who may be similarly concerned about the privacy of their telephone calls and e-mails.
12. That the Commission give due consideration to the privacy concerns of the original 22 complainants who, because Congress has been immobilized and has failed to do its duty to investigate the telephone companies’ involvement in NSA’s warrantless domestic wiretapping and data mining programs, have turned to the Commission; and here they are: Paul Tyson, Kristen Archambeault, and Jaye Gorham own and operate businesses in Maine; Paul Sarvas is a member of the Dance Faculty of Bowdoin College; Lisa Hicks is the artistic director of a dance troupe in Portland; Lawrence Dyer is Principal, Louis Solebello is Vice Principal, and Richard McGuire, Pamela O’Connell, and David Cowie are teachers, at Bath Middle School; John Donavan is a guidance counselor at Sacopee Valley High School; Ethan Strimling is executive director of Portland West Neighborhood Organization and a member of the Maine Senate; Barbara Taylor, Esq., is a staff attorney at the Immigrant Legal Advocacy Project in Portland; Christopher Branson, Esq., is a partner of the Murray, Plumb & Murray law firm and the MCLU’s vice president; Thomas Mundhenk is MCLU’s treasurer; Sally Dobres is a past president and current member of the MCLU Board of Directors; and Gwethalyn Phillips, Maureen Dea, Margaret Siegel, and Harold Noel are 5
Recommendations of the Lead Complainant, Docket No. 2006-274 members of the MCLU Board of Directors; James Woodworth is a homeowner and resident of Ellsworth; and Annie and James Cowie are homeowners and residents of Portland.
Finally, I recommend the Commission consider - and to please take to heart - that what NSA may be doing in Maine with Verizon’s help is different only in form from a Maine sheriff breaking into a citizen’s home and searching for and seizing whatever he wants to seize, and then telling the citizen she or he cannot be told why he’s done it because that information is highly classified and a State Secret.
Respectfully submitted, James D. Cowie Lead Complainant 32 North Street Portland Maine 04101 June 30, 2006