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ACLU: Lynch caves in to feds on phone privacy

01:00 AM EST on Friday, January 25, 2008

By Bruce Landis

Journal Staff Writer

PROVIDENCE — Attorney General Patrick C. Lynch is under fire from the American Civil Liberties Union for supporting immunity for the telephone companies accused of illegally turning over the telephone records of millions of Americans, including Rhode Islanders, to a federal intelligence agency.

Steven Brown, executive director of the ACLU’s Rhode Island affiliate, said that by supporting a White House-backed immunity bill, Lynch has decided “that the interests of the telecommunications industry are more important than the privacy rights of our residents.”

The ACLU produced a copy of a Dec. 11 letter supporting the legislation signed by Lynch and 20 other state attorneys general and addressed to the Democratic leadership in the U.S. Senate. The letter said that protecting the telephone companies from lawsuits “is essential to domestic and national security.”

Lynch didn’t respond to a number of questions submitted by The Journal, instead issuing a statement in which he charged that holding the telecommunications companies responsible for giving records to the National Security Agency would cause them to stop cooperating with local police in criminal cases.

Lynch posed a hypothetical scenario where, in the middle of a life-or-death investigation, the telephone companies stopped cooperating for fear of being sued and “a tragedy” resulted.

Lynch also said that lack of immunity for the telephone companies would undermine national anti-terrorism efforts, saying that the companies “will stop cooperating” with the intelligence agencies if they could be sued as a result.

On the other hand, the attorneys general of Vermont, Maine and New Jersey, and the Missouri public safety commissioner have urged the Senate to reject immunity for the telephone companies.

Connecticut Attorney General Richard Blumenthal has argued that immunity would short-circuit pending litigation seeking to allow Connecticut and other states to investigate whether telephone companies broke state privacy laws prohibiting release of caller information without warrants.

“An immunity grant also would undermine states’ police powers and long-established authority to regulate utilities,” Blumenthal said.

“Immunity will prevent states from seeking the truth: Did telecommunications companies break the law and violate consumer privacy by providing information without warrants?” Blumenthal said.

Law enforcement agencies can’t normally conduct electronic surveillance without a warrant issued by a judge.

But after the 9/11 terrorist attacks, the Bush administration asked major telecommunications companies to wiretap communications between individuals in the United States and foreign countries without warrants. Since then, the administration has asserted that nothing about the controversial surveillance program, which was revealed in newspaper articles, can be disclosed without jeopardizing national security and undermining the “war on terror.” The bill in Congress would let the U.S. attorney general throw pending and future lawsuits against the telecommunications companies out of court.

The bill would amend the Foreign Intelligence Surveillance Act, which deals with the physical and electronic surveillance and collection of “foreign intelligence information” between “foreign powers” on U.S. territory.

Brown called the bill “the Bush administration’s latest effort to cover up their violations of the rights of Americans in the name of fighting terrorism.” He said the bill would also kill the ACLU’s pending complaint, filed in May 2006 with the state Division of Public Utilities and Carriers, against Verizon and AT&T.

The domestic surveillance issue arose in 2006, when news reports described how AT&T and Verizon allegedly provided the NSA, without a court order, the phone records of millions of residential customers.

The ACLU complaint here said that the customer information given to the NSA could “be easily matched with other databases to obtain the name and residence of each caller.” That, the organization said, would let the government “track virtually every phone call made by Rhode Island residential customers, including the identity of the people they called and the length of each conversation.”

The ACLU complaint called the companies’ alleged release of the data a “systematic and flagrant violation” of their customers’ privacy rights. It asked the DPU to investigate whether the release of the information violated state law.

The complaint was put on hold while a case involving many of the same issues continues in federal court in California.

The companies, including Verizon and AT&T, have insisted that their actions were legal. They cited a legal doctrine called the state secrets privilege, under which some matters are considered so critical to the nation’s security that they cannot be disclosed through the courts.

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