In an attempt to determine whether any state consumer protection laws have been violated by phone companies turning over information to the National Security Agency, the N.J. state attorney general has been trying to receive information from phone companies.
The New Jersey official, Zulima V. Farber, had issued subpoenas to the five phone companies operating in New Jersey on May 17, asking for documents that would explain whether they supplied customer records to the NSA. The supeoenas were issued after a USA Today story revealed the fact that the NSA has massive database of Americans' phone calls.
The subpoenas demanded responses by May 30. While the telephone companies were unable to persuade Ms. Farber to withdraw the subpoenas, they were able to get an extension till Thursday.
One day before that extended deadline, the federal government filed its lawsuit.
The Justice Department is falling back on the old national security ploy but now Alberto Gonzales isn't just fighting civil liberties groups. Now it has become state vs. feds!
The Justice Department admits that more than 20 lawsuits have been filed around the country alleging that the phone companies illegally assisted the NSA. Most of those lawsuits have been filed by
The American Civil Liberties Union but now the Justice Department has to worry about shutting down the states as a means of keeping illegal spying out of the public eye.
In today's New York Times metro section;
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.
On Wednesday, when the United States filed a lawsuit to block the subpoenas, they were calling into question the state's authority to protect consumers' rights. When the Justice Department filed suit against the first legal move by a state to question the NSA's program to compile calling records of innocent Americans, they have set up a legal showdown.
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."
Assistant Attorney General Peter Keisler also warned lawyers for the phone companies that responding to the subpoenas "would violate federal laws and executive orders."
A separate letter that Keisler, head of the department's Civil Division, sent to Farber made the same points, but it took a softer approach.
"We sincerely hope that you will withdraw the subpoenas, so that litigation over this matter may be avoided," Keisler said.
But the purpose of Ms. Farber's subpoenas is to determine whether the phone companies have turned over phone records to the federal government without a court order, in possible violation of state laws. Telecommunications law assesses hefty fines on phone companies that violate customer privacy by divulging such records without warrants.
The May 11 USA Today story has already revealed the fact that "The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans -- most of whom aren't suspected of any crime." But the White House has chosen to neither confirm nor deny these allegations.
After that story it doesn't seem like much of a secret that records of billions of domestic calls are being compiled. Now the Justice Department is standing in the way of the states from determining the violations the phone companies may be guilty of in handing over records of domestic calling patterns without a warrant.
"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."
As pointed out by YucatanMan in yesterday's diary, Information LOCKDOWN! On Attorneys General? on yesterday's NYT coverage of the federal lawsuit;
Notice that the Attorney General is not seeking copies of the information given, but only whether records were in fact provided!
Things may be getting a little sticky for Alberto Gonzales. It is no longer about the American Civil Liberties Union. This one actually is from an attorney general demanding answers as to whether consumer protection laws have been violated. And the feds don't look so good shutting down state inquires.