NYT: New Jersey Demands Data on Phone Call Surveillance and Is Sued by U.S.
On Wednesday, the United States filed a lawsuit to block the subpoenas, setting up a legal showdown pitting the state’s authority to protect consumers’ rights against the federal government’s national security powers.
“People in New Jersey and people everywhere have privacy rights,” the state’s attorney general, Zulima V. Farber, said on Thursday. “What we were trying to determine was whether the phone companies in New Jersey had violated any law or any contractual obligations with their consumers by supplying information to some government entity, simply by request, and not by any court order or search warrant.”
This latest confrontation over the invocation of national security began last month, when Ms. Farber issued the subpoenas to the companies — AT&T, Verizon, Qwest, Sprint Nextel and Cingular Wireless — to determine whether they had turned over the phone records to the federal government without a court order, in possible violation of state laws.
But when the Justice Department filed suit in United States District Court here to block those subpoenas — a suit that Ms. Farber received on Thursday — it asserted that the state was straying into a federal matter, and that compliance with the subpoenas would imperil national security.
As a matter of national security policy, the dispute represents the latest twist in the controversy over the boundaries of domestic spying and personal privacy. But as a matter of government practice and legal precedent, the dispute is significant because it transforms what had primarily been a fight between the federal government and civil liberties groups into a far knottier one pitting federal authorities against state ones.
Clifford Fishman, a professor at Catholic University Law School who is an expert on electronic-surveillance law, also said the actions by both state and federal government were laden with political overtones.
Professor Fishman said New Jersey’s subpoenas — issued by a Democratic administration — appeared to be “a political move to try to embarrass the Bush administration as well as the phone companies.” But he added that “the Bush administration is responding with a howitzer instead of a sniper.”
The professor, who noted that he had not seen the government’s suit, said each party had alternatives to what he saw as a significant development over the disputed reach of the National Security Agency. He said the federal government need not have sued New Jersey to make its argument against the subpoenas, and he said the state could have allowed numerous private parties to pursue litigation against the phone companies, rather than getting involved.
In the lawsuit, the federal government invokes the state-secrets privilege, in which the government asserts that any discussion of a given lawsuit’s claims would threaten national security.
“Compliance with the subpoenas issued by those officers would first place the carriers in a position of having to confirm or deny the existence of information that cannot be confirmed or denied without causing exceptionally grave harm to national security,” Assistant United States Attorney Irene Dowdy claimed in the government’s complaint. “And if particular carriers are indeed supplying foreign intelligence information to the federal government, compliance with the subpoenas would require disclosure of the details of that activity.”
But in an interview on Thursday, Ms. Farber said that it was incumbent upon her to insure that the phone companies were not violating state law if they had turned in any phone records to the N.S.A. The New York Times first reported in December that President Bush had authorized the security agency to conduct eavesdropping without warrants. Last month, USA Today reported that the N.S.A. had created a large database of phone calls made by customers of several phone companies.
A few days after the USA Today article was published, Ms. Farber issued subpoenas to phone companies that operate in New Jersey. Yet few people outside of state government and the phone companies knew about them.
Ms. Farber had originally demanded responses by May 30. She said that telephone company representatives, unable to persuade her to withdraw the subpoenas, had asked for an extension until Thursday. One day before that extended deadline, the federal government filed its lawsuit.
The question of whether phone companies have turned over customer records to the spy agency already has spawned a handful of lawsuits. Some companies have denied surrendering the records; others denied wrongdoing or declined to comment. For instance, a federal judge in San Francisco has scheduled a hearing for next Friday in a lawsuit filed by the Electronic Frontier Foundation, a privacy-rights advocacy group that seeks to enjoin phone companies from turning over records and seeks damages for affected customers.
Selim Bingol, a spokesman for AT&T, said that the lawsuit filed by the federal government to block New Jersey’s subpoenas showed that the phone companies should not be the ones that have to address these policy issues.
The American Civil Liberties Union has filed complaints in 22 states demanding that attorneys general and utility regulators officials investigate whether consumer protection laws have been violated. Officials in a few states in addition to New Jersey. including Vermont, Maine and Washington, have promised to investigate.
“All we’re really trying to do is to make sure that the phone companies have followed the law,” said David J. O’Brien, Vermont’s commissioner of the Department of Public Service.
But none had gone as far as New Jersey, according to Barry Steinhardt, director of the A.C.L.U.’s Technology and Liberty Project.
According to some critics, one potential weakness of the government’s state-secrets claim is that Ms. Farber — as well as Gov. Jon S. Corzine and Richard L. Cañas, the state director of homeland security — has top federal security clearance, and might well not divulge any sensitive national security information she received as a result of the subpoenas.
“Our state officials are cleared for security purposes all the time,” said Bruce Afran, a lawyer in Princeton, N.J., who, with his partner, Carl Mayer, filed a federal suit in Manhattan last month against Verizon.
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