MAINE CIVIL LIBERTIES UNION FOUNDATION

June 12, 2006 ELECTRONICALLY FILED Mr. Dennis Keschl, Administrative Director Maine Public Utilities Commission 18 State House Station Augusta, ME 04333 dennis.keschl@maine.gov Re: MCLU Comments, JAMES D COWIE, ET AL. Request for Commission Investigation Into Whether Verizon is Cooperating in Maine With the National Security Agency’s Warrantless Domestic Wiretapping Program, Docket No. 2006-274 Dear Mr. Keschl: Enclosed for filing, please find the Comments of Proposed Intervenor Maine Civil Liberties Union Regarding the May 19 Response of Verizon Maine to Ten-Person Complaint. The Maine Civil Liberties Union thanks the commission for the opportunity to comment. Very truly yours,

Zachary L. Heiden, Esq. CC: Andrew Hageler, Esq. William Black, Esq. Donald W. Boecke, Esq. James D. Cowie

401 Cumberland Avenue • Suite 105 • Portland, Maine 04101 • 207 774-5444 • Fax 207 774-1103

ELECTRONICALLY FILED ON JUNE 12, 2006 STATE OF MAINE PUBLIC UTILITIES COMMISSION JAMES D COWIE, ET AL. RE: Request for Commission Investigation Into Whether Verizon is Cooperating in Maine With the National Security Agency’s Warrantless Domestic Wiretapping Program

Docket No. 2006-274

THIS IS A VIRTUAL DUPLICATE OF THE ORIGINAL HARDCOPY SUBMITTED TO THE COMMISSION IN ACCORDANCE WITH ITS ELECTRONIC FILING INSTRUCTIONS Comments of Proposed Intervenor Maine Civil Liberties Union Regarding May 19 Response of Verizon Maine to Ten-Person Complaint The Maine Civil Liberties Union respectfully disagrees with the May 19 “Response of Verizon Maine to the Ten-Person Complaint” (“May 19 response”) concerning the implication of Verizon’s actions on the privacy rights of Maine telephone service subscribers, filed with the Maine Public Utilities Commission (“Commission”) . Rather than answer the questions posed by Commission attorney Andrew S. Hagler, Verizon has attempted to hide its conduct behind a misreading of the Commission’s authority and a misapplication of an evidentiary privilege. Verizon’s May 19 response to the Commission was incorrect in at least three important ways: First, the Commission has both the authority and the obligation to investigate whether and to what extent Verizon Maine’s actions impinge on the privacy rights of Maine telephone service subscribers and violate 35-A M.R.S.A. § 7101-A;1 Second, the Commission’s jurisdiction to investigate this matter has not been preempted by the Federal government; and Third, Verizon Maine cannot assert the “state-secrets” privilege in order to shield itself from investigation.

35-A M.R.S.A. § 7101-A(1) provides: “[t]elephone subscribers have a right to privacy and the protection of this right to privacy is of paramount concern to the State.”

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First, the Commission has the authority and the obligation to investigate whether Verizon Maine put the rights and well-being of its phone customers at risk. The Commission’s grant of authority from the Legislature is broad and robust, and it evidences an intent by the Legislature that the Commission should actively investigate and regulate public utilities in the State of Maine: “All public utilities are subject to the jurisdiction, control and regulation of the commission and to this Title.” 35-A M.R.S.A. § 103(2)(A). Public utilities willingly submit to the authority of the Commission as a condition to being allowed to do business in Maine. This power to investigate and regulate public utilities, such as Verizon Maine, has been definitively upheld by the Maine Supreme Judicial Court. Sitting as the Law Court, the Maine Supreme Judicial Court has “long recognized that the regulation of public utilities is a function entirely within the authority of the Public Utilities Commission.” City of Portland v. Public Utilities Comm’n, 656 A.2d 1217, 1220 (Me.,1995). Like all other public utilities, Verizon is subject to special regulation and oversight by the government; Verizon is not free to declare when that regulation and oversight does and does not apply. In light of its authority to investigate and regulate, the Commission’s request for information about Verizon Maine’s conduct is appropriate and reasonable, and must be honored. The Law Court has set forth the standard for determining whether requests for information from the Commission are enforceable and must be honored: “Such a demand is enforcible (sic) if (1) the inquiry is one the demanding agency is authorized by law to make, (2) the information sought is relevant to the authorized inquiry, and (3) the disclosure sought is reasonable; I.e., the demand is not disproportionately burdensome or unreasonably broad.” Central Maine Power Co. v. Maine Public Utilities Commission, 395 A.2d 414 (Me., 1978). The Commission is authorized, and indeed obligated, to inquire as to whether the provisions of 35-A of the Maine Code are being followed. The Commission cannot make that determination without a response from Verizon as to the scope of its behavior. The Commission’s request is narrow, asking only for information about the privacy rights of Maine telephone customers. Verizon must substantively answer the Commission’s requests.

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Second, the Commission’s jurisdiction to investigate this matter has not been preempted by the Federal government. The United States Supreme Court has definitively rejected the notion that “compliance with minimum federal standards immunizes the licensed commerce from inconsistent or more demanding state regulations.” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 141 (1963). Our federalist system requires Verizon to comply with both the laws of the Federal government and the laws of all states where it conducts business; Verizon Maine is aware of this. Federal preemption of state regulation is the narrow exception, rather than the rule, and it is dependent upon circumstances not present here. Preemption of state law requires both Federal congressional intent to preempt and a valid exercise of Federal authority to preempt. In enacting the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. 90351, Tit. III, 82 Stat. 212, 18 U.S.C. §§ 2510-2520 (“Title III”), Congress acted affirmatively to regulate interception of telephonic communications by providing a defense for cooperation with law enforcement pursuant to a Federal Court order. But, there is nothing in Title III or in its legislative history indicating that interference with telephone privacy was somehow acceptable. Indeed, the entire purpose of Title III was to ensure that there was oversight by the courts of any such activity. Verizon Maine’s invocation of Camacho v. Autoridad de Telefonos de Puerto Rico, 868 F.2d 482 (1st Cir., 1989) is, therefore, quite misleading. The central problem with the alleged conduct by Verizon is that it was not performed pursuant to a warrant issued by a judge upon a showing of probable cause, as both Federal and Maine law require. Contrary to the suggestion that Congress has “occupied the field” with regard to telecommunications law, Congress has, in fact, expressed its intent that the states should pass regulations to protect the rights of phone customers in the state (akin to 35-A M.R.S.A. 7101-A), in the Telecommunications Act of 1996. Congressional intent is quite clear that the states have an important role to play in telecommunications regulation. The Telecommunications Act of 1996 states plainly that “Nothing in this section shall affect the ability of a State to impose, on a competitively neutral basis and consistent with section 254 of this title, requirements necessary to . . . safeguard the rights of consumers.” 47 U.S.C. § 253(b).

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When Congress enacted Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. § 1801 et seq. (FISA), it provided that the procedures of that Act and of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (“Title III”), 18 U.S.C. § 2510 et seq., together constitute “the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.” 18 U.S.C. § 2511(2)(f) (emphasis added). But there are no indications in the text of FISA’s remedial provisions, 50 U.S.C. §§ 1809-10; in the text of the “exclusive means” provision, 18 U.S.C. § 2511(f); or in the legislative reports on FISA, see S. Rep. 95-701, reprinted in 1978 U.S.C.C.A.N. 3973; S. Rep. 95-604(I), reprinted in 1978 U.S.C.C.A.N. 3904; H.R. Rep. 95-1283(I); H.R. Conf. Rep. 95-1720, reprinted in 1978 U.S.C.C.A.N. 4048, that Congress intended for its regulation of the means of interception of electronic communications to occupy the field with respect to the disclosure of the records of such communications. None of the relevant Federal statutes evidence an intent by Congress to take over this area of the law, or to insulate companies like Verizon Maine from state regulators. As such, Verizon Maine is obligated to answer the questions put to it by the Commission. Third, Verizon simply cannot assert the “state-secrets” privilege in order to shield itself from investigation. Verizon has no standing to assert the state-secrets privilege, which, as the U.S. Court of Appeals recently reiterated, “is an evidentiary privilege derived from the President’s constitutional authority over the conduct of this country’s diplomatic and military affairs and therefore belongs exclusively to the Executive Branch.” Khaled ElMasri v. George Tenet, et al., 2006 WL 1391390 (E.D.Va., 2006); See also United States v. Reynolds, 345 U.S. 1., 7-8 (1953). Verizon Maine is not a part of the Executive Branch of the Federal Government; Verizon Maine has no responsibility for this country’s diplomatic and military affairs. It is, therefore, impossible for Verizon Maine to invoke the state-secrets privilege. Further, the “state-secrets” privilege may only be validly asserted by the head of an Executive Branch agency charged with controlling the state-secret at issue. See id.

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On page 5 of its May 19 response, Verizon notes that the Department of Justice has asserted the “state-secrets” privilege in a case involving alleged unauthorized violations of phone customer privacy by AT&T. Verizon Maine suggests that the same rationale applies to Verizon Maine’s refusal to answer and to the Federal Bureau of Investigation’s assertion of the “state-secrets” evidentiary privilege. This is not correct. In the AT&T case (Hepting et al. v. AT&T Corp. (N.D. Ca.)), the United States has sought to intervene and, simultaneously, assert the privilege on its own behalf. See Hepting et al. v. AT&T Corp., “Government’s Memorandum of the United States in Support of the Military and State Secrets Privilege and Motion to Dismiss or, in the alternative, for Summary Judgment”, appended to the May 19 response. In Hepting, the assertion of the state-secrets privilege was made by the Director of National Intelligence (“DNI”) and the Director of the National Security Agency (“DIRNSA”). Verizon is not the analogue of the DCI or the DIRNSA, and cannot appropriately analogize its refusal to disclose information about the impact of its behavior on the privacy rights of Maine telephone customers to the DCI and DIRNSA’s efforts to protect secret information with an impact on international relations. The U.S. Government has not sought to intervene in the Commission’s potential investigation, and any discussion, at this point, about the appropriateness of the state-secrets privilege, is premature. Even if the state-secrets privilege were to be properly invoked in this investigation, its invocation would not be automatic cause for the Commission to abandon its search for information, because the privilege is an evidentiary privilege and not a doctrine of immunity. The state-secrets privilege is a common-law evidentiary rule that permits the government, and only the government, to “block discovery in a lawsuit of any information that, if disclosed, would adversely affect national security.” Ellsberg v. Mitchell, 709 F.2d 51, 56 (D.C. Cir. 1983). It is employed to protect against disclosure of information that will impair “the nation’s defense capabilities, disclosure of intelligencegathering methods or capabilities, and disruption of diplomatic relations with foreign governments.” In re Under Seal, 945 F.3d 1285, 1287 n.2 (4th Cir.1991) (quoting Ellsberg, 709 F.2d at 57); see also Sterling v. Tenet, 416 F.3d 338, 346 (4th Cir. 2005). The privilege must be narrowly construed, and may not be used to “shield any material not strictly necessary to prevent injury to national security . . . .” Ellsberg, 709 F.2d at

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58; see also United States v. Reynolds, 345 U.S. 1, 10 (1953) (there must be a “reasonable danger” that disclosure will harm national security) (emphasis added). The Supreme Court has cautioned that the privilege is “not to be lightly invoked.” Reynolds, 345 U.S. at 7. That is because of the “serious potential for defeating worthy claims for violations of rights that would otherwise be proved . . . .” In re United States, 872 F.2d 472, 476 (D.C. Cir. 1989). Accordingly, courts must use “creativity and care” to devise “procedures which would protect the privilege and yet allow the merits of the controversy to be decided in some form.” Fitzgerald v. Penthouse Intern, Ltd., 776 F.2d 1236, 1238, n.312 (4th Cir. 1985). Suits may be dismissed pursuant to the privilege “[o]nly when no amount of effort and care on the part of the court and the parties will safeguard privileged material.” Id. at 1244. Even when the privilege is invoked to deny access to evidence during discovery, courts have construed the privilege narrowly. Ellsberg, 709 F.2d at 57 (“[W]henever possible, sensitive information must be disentangled from nonsensitive information to allow for the release of the latter”); In re Grand Jury Subpoena Dated August 9, 2000, 218 F. Supp. 2d 544, 560 (S.D.N.Y. 2002) (“[T]he contours of the privilege for state secrets are narrow, and have been so defined in accord with uniquely American concerns for democracy, openness, and separation of powers.”). The Commission, if necessary, can work with any government witnesses to develop creative solutions that ensure that the investigation can proceed. Dismissal of a case on state secrets grounds prior to discovery is proper only in an extremely narrow category of cases in which the very subject matter of the suit is a state secret. As the Fourth Circuit has held, “unless the very question upon which the case turns is itself a state secret, or . . . sensitive military secrets will be so central to the subject matter of the litigation that any attempt to proceed will threaten disclosure of the privileged matters, the plaintiff’s case should be allowed to proceed . . . .” DTM Research L.L.C. v. AT&T Corp., 245 F.3d 327, 334 (4th Cir. 2001) (internal quotation marks omitted); see also Sterling v. Tenet, 416 F.3d 338, 347-48 (4th Cir. 2005) (“[W]hen the very subject of the litigation is itself a state secret, which provides no way that case could be tried without compromising sensitive military secrets, a district court may properly dismiss the plaintiff’s case.”) (internal quotation marks omitted). The

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Fourth Circuit has described as “narrow” the category of cases that may be dismissed because of the “centrality of the privileged material,” or because “the very subject matter of the litigation is itself a state secret.” Fitzgerald, 776 F.2d at 1243-44. As a matter of law and common sense, the Verizon cannot legitimately keep secret what is already widely known. See, e.g., Capital Cities Media, Inc. v. Toole, 463 U.S. 1303, 1306 (1983) (noting that Court has not “permitted restrictions on the publication of information that would have been available to any member of the public”); Snepp v. United States, 444 U.S. 507, 513 n.8 (1980) (suggesting that government would have no interest in censoring information already “in the public domain”); Virginia Dept. of State Police v. The Washington Post, 386 F.3d 567, 579 (4th Cir. 2004) (holding that government had no compelling interest in keeping information sealed where the “information ha[d] already become a matter of public knowledge”).2 The central facts of the Commission’s investigation are not state secrets, and do not become so simply because Verizon Maine insists otherwise. Far too many facts about this matter have been officially acknowledged or made public for Verizon Maine, or anyone else, plausibly to contend that it “can neither confirm nor deny” whether it put the privacy rights of Maine phone customers at risk. Numerous news outlets have reported on phone company behavior that threatens the privacy rights of ordinary Americans.3 Both the President of the United States4 and the Chair of the Senate Intelligence committee,5 to name just two officials, have acknowledged the existence of a
See also Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 103 (1979) (noting previous holding that “once the truthful information was publicly revealed or in the public domain the court could not constitutionally restrain its dissemination”) (internal quotation marks omitted); United States v. Marchetti, 466 F.2d 1309, 1318 (4th Cir. 1972) (noting that First Amendment “precludes . . . restraints with respect to information which is . . . officially disclosed”); McGehee v. Casey, 718 F.2d 1137, 1141 (D.C. Cir. 1983) (noting that “[t]he government has no legitimate interest in censoring unclassified materials” or “information . . . derive[d] from public sources”). 3 For example: Eric Lichtblau and James Risen, Domestic Surveillance: The Program; Spy Agency Mined Vast Data Trove, NEW YORK TIMES, (December 24, 2005); Shane Harris, NSA Spying Program Hinges On State-of-the-Art Technology, NATIONAL JOURNAL, (January 20, 2006); John O’Neil and Eric Lichtblau, Qwest’s Refusal of NSA Query is Explained, NEW YORK TIMES, (May 12, 2006); Ken Belson and Matt Richtel, Verizon Denies Turning Over Local Phone Data, NEW YORK TIMES, (May 17, 2006). 4 Verizon Maine cites, on the opening page of the May 19 Response, the comments of President Bush at his December 19, 2005 acknowledging that warrantless surveillance of Americans is being done by the NSA, though this undercuts Verizon Maine’s contention that the subject of the Commission’s inquiry is itself a secret. 5 In an interview with National Public Radio, Senator Pat Roberts of Kansas acknowledged that the NSA was collecting phone records of Americans without a warrant and that the program did not violate the privacy rights of Americans. Thus, in one interview, Senator Roberts (who has been briefed on the
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program involving the collection of telephone communications information on ordinary Americans without a warrant or even an articulable basis for suspicion. Both President Bush and Senator Roberts have confirmed some aspects of news reports and denied others. That cannot, though, be the end of the inquiry. There is no justification for Verizon Maine’s refusal to answer questions about how its actions have jeopardized the privacy rights of Maine telephone subscribers. The MCLU hopes that the Commission will open a full investigation of Verizon Maine’s actions and will demand substantive answers. Very truly yours, MAINE CIVIL LIBERTIES UNION

Zachary L. Heiden, Esq. Staff Attorney 401 Cumberland Avenue, Suite 105 Portland, Maine 04101 (207) 774-5444 June 12, 2006

activities of the NSA and the phone companies) confirmed central elements at issue in the Commission’s investigation while denying others. Melissa Block, Senate Chair Readies For Hayden Hearings, NATIONAL PUBLIC RADIO: ALL THINGS CONSIDERED, (May 17, 2006).

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