No Amnesty for Lawbreaking Telecoms
By Elizabeth DiNovella, June 12, 2008

Congress may be on the verge of giving phone companies retroactive immunity from lawsuits over their role in helping Bush’s warrantless domestic wiretapping program.

This gift to telecoms is expected to be included in the so-called compromise legislation on FISA that may be rushed through Congress before the July 4 weekend.

Since at least 2002, the National Security Agency has been reaching more broadly into data about Americans’ communications, travel patterns, and finances here in this country. The complete extent of domestic spying on Americans by the Bush Administration is unknown, as some programs remain secret and part of the black budget of the National Security Agency. But it is clear that the federal government has intercepted entirely domestic communications of millions of ordinary Americans.

The Bush Administration could not have done its illegal domestic wiretapping without the complicity of the major telecommunications companies.

Thirty-eight lawsuits are now pending against telecom giants such as Sprint, Verizon, MCI and AT&T for violations of privacy. And the telecoms are now pressuring Congress to give them retroactive amnesty for their role in breaking the law.

The lawsuit that is furthest along in the courts is Hepting vs. AT&T. The Electronic Frontier Foundation filed a class action lawsuit against AT&T in January 2006, accusing the company of violating the law and privacy of its customers by collaborating with the National Security Agency in it massive, illegal program to wiretap and data mine Americans’ communications.

This week I spoke with Rebecca Jeschke, media relations coordinator of the Electronic Frontier Foundation. (You can listen to the interview here)

Q: The Electronic Frontier Foundation website has an action alert about why AT&T and other phone companies do not deserve retroactive amnesty for their participation in Bush’s warrantless domestic spying program. Can you talk about that?

Rebecca Jeschke:One important thing to note right off the bat is that it’s not just wiretapping that we’re talking about, in the way that you see it on a cop show on TV. That’s definitely one of the things that’s going on—people’s phones being tapped and listening in without a warrant. But another thing that’s going is that, with AT&T specifically and potentially other phone companies and other telecommunications providers, your Internet traffic is being diverted to the NSA, and your call records data—information about who you called, when you called them and how long you were on the phone. So this is not just specifically about wiretapping. It’s about all your communications through major telecommunications companies becoming available to the government.

We think that this is a travesty and clearly illegal. So what we’re asking is that our lawsuit against AT&T and other lawsuits against other telecommunications companies go in front of the courts. It’s important that we get a ruling on whether this is, in fact, legal or not. The movement in Congress to grant immunity to the telecommunications companies would just sweep the whole thing under the rug.

Q: Can you talk a minute about AT&T’s role in this dragnet surveillance of its customers?

Jeschke: In December of 2005 a retired AT&T telecommunications technician named Mark Klein walked into EFF’s offices in San Francisco with some very important information. He had just read the New York Times story that really uncovered this program for the first time and realized that a project he’d worked on when he was employed by AT&T had something to do with it. He was concerned when he was working for AT&T when he helped hook up what has become known as a secret room south of Market Street in San Francisco that diverted all, as far as he could tell, all Internet communications of AT&T customers, and the people who they were talking to, to the government. He brought us information that he’d kept because he was concerned about the work that he was doing. We checked with experts about that information and it became clear that this man, Mr. Klein, was telling the truth and really came forward to blow the whistle on a massive program.

Q:This secret room isn’t the only one. It’s estimated that there may be perhaps between fifteen and twenty, maybe more, throughout the country.

Jeschke: Yes. Mark Klein’s information pointed to eight or nine other sites, and it’s possible that there are quite a few more. The secret room in San Francisco may just be West Coast traffic; there are many more.

Q: Can you talk about Hepting versus AT&T, the class action lawsuit the EFF filed in January 2006?

Jeschke: Federal law states that there are damages for telecommunications companies that pass information to the government without legal authorization, a warrant or subpoena. This kind of massive surveillance of Americans is specifically illegal under the Electronic Communications Privacy Act and the Telecommunications Act. These were laws passed by Congress because telecommunications companies are the last people that can protect your privacy. If the government wants to tap your phone illegally, the telecommunications companies are the ones you need to be able to trust to say no, we have to follow the law. The only way the law can be enforced is if the telecommunications companies go along with it. The laws are specific that this is illegal.

So we filed a class-action lawsuit against AT&T. The government, not AT&T, has filed many motions to try to get this case thrown out of court. A lower court judge ruled that this case could go forward without exposing state secrets. The government keeps saying that if this case goes forward it could expose important state secrets. But a federal judge said no, this can go forward without exposing state secrets, I know what to release to the public and what not to release to the public. That question is now in front of the Ninth U.S. Circuit Court of Appeals and it has yet to rule on whether this case could go forward or not.

We think that it’s very important that government shouldn’t be allowed to sweep this case under the rug by saying if it keeps going, it’s going to expose state secrets. A judge is certainly more than capable of deciding what evidence should be received in private by him or her and what evidence should be made public.

Q: One of the judges involved in the case, Judge Walker, said, “AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.”

Jeschke: Yes. That really gets right to the heart of it. There was a story in 2006 that pointed out that Qwest, a telecommunications company, when approached by the government to take part in this program, said no. Qwest said no because it was illegal. This is basic privacy law that all of these telecommunications carriers should have known.

One of the arguments is, often, that when the government asks you to do something, you should just do it, that that’s being a patriot. That’s what some of the defenders of the telecommunications companies say. But in America, you just don’t follow the leader; you follow the law. So when the government tells you to do something illegal, you have to say no. That’s a basic tenet of the rule of law. The telecommunications companies didn’t do that, and we shouldn’t let them off the hook.

Q: Do you think Congress is going to pass retroactive immunity for these telecommunications companies?

Jeschke: I certainly hope not. We’re working really hard at EFF to make sure that immunity is not passed. We think that Americans deserve their day in court. We deserve some answers about what happened. We deserve a judgment on whether this spying was legal or illegal. It’s really important that you let your Congress people, our Senators know how you feel about this.

Q: One last thing, these telecommunications companies that have been involved in this warrantless domestic spying program are getting billions of dollars in government contracts. Though these telecommunications companies have been government contractors for a long time, it represents a significant increase in revenue over the last few years.

Jeschke: It does create a different motive than patriotism for doing what the government wants. That if people say, “Oh these companies were just being good patriots, they were breaking the law because they were patriots,” well, maybe that’s not the full story. And that’s yet another reason why we need to go to court and we need to have the judicial system weigh in on whether this was legal or not.

Senators Chris Dodd and Russ Feingold wrote a letter to Congressional leaders, asking them to toss out automatic immunity for telecoms.

Presidential contender John McCain supports amnesty for telecoms. As Wired reports, the McCain campaign employs many lobbyists from the telecommunications industry: “Charlie Black, a top McCain political adviser, worked for lobbying firm BKSH until March of this year. AT&T paid the firm $120,000 for the first three months of 2008, in part to lobby for the FISA amendments. Black was listed as one of AT&T's lobbyists.”

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