Government May Help Bells Defend Against Wiretap Suits

Carl Bialik from WSJ writes "As lawsuits mount against phone companies from plaintiffs who allege their call records were handed over to the National Security Agency illegally, the companies' defense may get help from the U.S. government, the Wall Street Journal reports. From the article: 'The plaintiffs, who accuse Bell phone companies of privacy violations and are seeking billions of dollars in damages, would need to delve into the depths of the NSA's surveillance program to make their cases. But the government considers such information top secret, and legal experts expect the Bush administration to assert the "state secrets" privilege in the 20 or more lawsuits filed by privacy advocates in recent weeks. If judges accept the claim, as has been the case in nearly every instance in which it has been asserted since the early 1950s, the suits will dissolve.'"

Proposed Strategy

[eldavojohn]

The information itself may be classified but the fact of whether or not they collected it shouldn't be.

Why don't they ask the director of the NSA, Michael V. Hayden, whether or not their information was collected? They don't need the classified records, just to have him swear under oath (after checking appropriate databases) whether or not AT&T gave it to the NSA.

I would think a simple "yes" or "no" answer would be enough evidence and also keep the classified information concealed.

Bah!

[Umbral Blot]

This is so much bullshit. One of the principles of democracy is that the people get a say in how the government is run; preventing people from knowing what the government is up to, and preventing them from suing the government when it does something wtrong, goes against this principle. We aren't quite to the maching on congeress phase, but we are getting there fast.

the next step...

[geoffspear]

Why stop with the telecomms?

Classify all information about lung cancer as a "state secret" and you can get rid of all the lawsuits against tobacco and asbestos companies. Do the same with medical records, and *poof* there go all of the malpractice claims.

It would certainly save trying to ram all those tort reform packages through pesky Congressional committees.

Nothing to hide

[Toby The Economist]

Lovely comment in that recent /. article about that wiretapping equipment show -

The State broadly speaking may argue if we have nothing to hide, then why do we object to being watched?

If this is so, why does the State hide so much from *us*?

Re:Proposed Strategy

[TheSpoom]

Personally, if he answered "no", I'm afraid that wouldn't be good enough for me.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Re:Proposed Strategy

[NoTheory]

FYI, Michael V. Hayden is the former head of the NSA. Also, i sincerely doubt that they'd put the head of the CIA under oath. The republican senate has been extremely leery about putting anyone under oath who might face tough questions (I.e. justice department officials such as Alberto Gonzales).

He Could Lie

[eldavojohn]

Personally, if he answered "no", I'm afraid that wouldn't be good enough for me.

He could lie but you have to remember that there are people in the NSA with an axe to grind.

He could get up there and contemplate lying. But what if he lied and the information was leaked from the NSA or released after his death that the collections did occur?

Hayden is an important man. Important men (when intelligent enough) are constantly worried about how history sees them after they die. I would wager that his fear of the public finding out that he lied to his country, defied justice and decieved the very people he swore to serve would be a greater weight than the importance of covering up a breach of privacy on that same populace.

Really now...

[Anonymous Coward]

Does anyone realize that the State Secrets legal tactic has been used by the Bush administrations than ALL PREVIOUS PRESIDENTIAL ADMINISTRATIONS COMBINED?

Ask yourself this:

DO WE REALLY live in a time more dangerous than the Vietnam War?

DO WE REALLY live in a time more subversive than the Free Speech Movement of the 60's?

DO WE REALLY live in a time more frightening than the Cuban Missile Crisis?

DO WE REALLY live in a time more threatening to our way of life than the 70's Oil Embargo?

State Secrets was ONLY used in the past when classified data could be revealed in a case such that it would greatly hinder or be a serious detriment to National Security. Now I ask you this: What is that danger? Is it Osama Bin Laden? Is it a terrorist in the Middle East who hates us even more for a War that wasn't justified to begin with? Who is our enemy?! Damn, this is the most infuriating thing!

WHY IS NO ONE IN THE MEDIA ASKING THESE QUESTIONS?

Re:He Could Lie

[AuMatar]

No they aren't. Important men are concerned with maintaining their power/money/influence. While a few are megalomaniacs, most don't give a shit about history. As such, they'll lie in a second if they think they can get away with it and the lie will help them. Hell, Bush lied about WMDs and started a war over it, you don't think Hayden will lie over a few wiretaps?

Re:Bah!

[nuzak]

> We do (sort of) have a say. In November, you can vote out the incumbents. That's what I'll be doing.

I'm sorry but that's not good enough. The rule of law is not something that should be lumped in with tax cuts and gay marriage and all the other happy fun wedge issues.

We can start with trying to vote out the current elite. But we need laws that hold the government accountable, we need to impeach after the fact (strips 'em of pensions and the rights to hold any other office), and so on. We cannot allow tyranny to be the natural result of a term-limited official.

Re:Uncle Sam will get to collect all he wants.

[plasmacutter]

I don't break any laws as I conduct my telephone conversations, nor do (I would speculate) 99.99% of Americans. But if we catch terrorists and avert attacks, what's the harm in the government monitoring these phone calls?....And folks, please spare me the privacy argument/nonsense... this statement is nothing more than a more sophisticated way of saying "if you've done nothing wrong you have nothing to fear", the last portion really disqualifies you from saying anymore on the subject. It reflects absolutely no respect for the constitutional protections for the people of this nation. Point1: there are many "unenforcible" and antiquated laws on the books which can be used against you if the dominant party doesnt like what you are doing or who you are associating with Point2: even if it is not used for legal abuse, it can be used for closed door blackmail/threats to keep the opposing political groups and corporations "in line" Point3: We have had technically feasible ways to invade people's privacy en wholesale since the late 40's but you didnt see it happen because when they try they face the public wrath Point4: according to that statement above, why are they trying to invoke state secrets to hide their obvious breach of the constitution on multiple amendments? hmmm?

Re:Bah!

[TheGratefulNet]

to put it in the simplest possible terms:

"this is not your father's america".

what we have, now, is nothing close to what the founding fathers envisioned.

Land of the free?

[Cicero382]

I don't mean to knock America, but really!

I left the UK in 2001 (just before 9/11) to escape crippling taxes and what I saw as an increasingly oppressive government. I considered two possibilities; the USA and Italy. My wife persuaded (OK, ORDERED) me that Italy was the best bet. On the face of it, at the time, it was the lesser choice. But now...

Forget the taxes, I'm still better off - I'd be even better off in the States, but it's the other thing that concerns me.

Since I've been here I've watched (from a safe distance) a dramatic reduction of the rights someone living in a democracy should expect, both in the UK and the US. Why are you allowing it to happen?

What *really* gets me is - why is it happening? I've asked this question on /. before. It's obviously nothing to do with terrorists and so forth.

It's getting to the point where I'm seriously considering making a tin foil helmet.

PS. Yes, I know similar laws are being considered here, but we have one major advantage. We just say "AAh, F*ck off!" (And that includes the police).

Re:Nothing to hide

[MrSquirrel]

Exactly -- if they think it's okay to spy on us then why can't we "spy" on the information they obtained from us? With a new non-civilian intelligence head, things don't look good for American civil liberties. I don't see any form of oversight keeping the government in check from abusing/misusing information. Power corrupts -- absolute power corrupts absolutely.

Re:Proposed Strategy

[demachina]

I'm pretty sure he can plead the fifth. To get and keep his security clearance he can never divulge classified information. This program is no doubt still classified despite the fact that it was leaked. If he were to just confirm its existence he would be breaking the laws relating to his security clearance and subject to prosecution. You can't make people break the law, or incriminate themselves on the witness stand assuming the Bush administration hasn't unilaterally overturned this basic civil liberty yet. To get Hayden or anyone else in the NSA to testify about this program it would have to be declassified which ain't gonna happen.

If there was enough information leaked already to clearly establish that the records were turned over illegally then they might still have a case, but the government probably will try to have all the leaked evidence thrown out and to prevent anyone in the phone companies, who might not have a clearance to worry about, from testifying on national security grounds.

You would hope that if the law was broken, and it almost certainly was, that the phone companies and the government would be held to account. There is a communication act the explicitly forbids releasing your phone records without a court order.

It is an unfortunate fact that laws are much more vigorously enforced against ordinary citizens than they are against people in power. When the DOJ brings a Federal case against a citizen their success rate is extremely high like 80%. When citizen's bring a case against the government their success rate is extremely low. Welcome to Fascism.

Re:Uncle Sam will get to collect all he wants.

[beck001]

COINTELPRO, do you know anything about history? You do not have to break the law, you just have to disagee with whoever is in power.

Re:Bah!

[spun]

I'm reminded of an old political cartoon. In the first panel it shows an ugly rat in an excercise wheel in front of the US Capitol. He is running to catch a bundle of money dangled in front of him by a fat cat in a tuxedo. Behind him a mob bearing pitchforks and torches advances on him yelling "Throw the rats out!"

In the second panel, the mob has installed a cute mouse in the excercise wheel. The mouse is running after that same bundle of money while the mob walks off congratulating itself on a job well done.

Re:the next step...

[NoTheory]

But that's the point. The only justifications are partisan ones. Behavior like this should be unacceptable regardless of who you are. Just because the Dems did it, like the Republicans before them, and the dems before them, and the republicans before that, does not justify current behavior.

Re:Proposed Strategy

[PapayaSF]

The information itself may be classified but the fact of whether or not they collected it shouldn't be.

Really? Isn't that like saying circa 1943: "The information itself may be classified but the fact that there is a secret project at Los Alamos and Oak Ridge and Hanford involving uranium shouldn't be"? Or perhaps "The photos themselves should be classified, but the fact that many photo recon missions are being flown over the Normandy coast shouldn't be?"

Sometimes keeping secret the fact that information is being collected is as important, or even more important, than the information itself.

What Will It Take?

[ewhac]

Government and corporations, working hand in hand!

There's a word [wikipedia.org] for that, you know...

Let's review:

• The United States Government is spying on you;
• The United States Government lied to you to get you to agree to go to war;
• The United States Government is sending your children half way across the world to be killed;
• The United States House and Senate are refusing to their jobs of representing you and advocating for your rights and interests;
• The United States Government has undermined your reputation among nations by abandoning global cooperation and diplomacy and acting unilaterally;
• The United States Government has endangered your safety by antagonizing and attacking foreign people, thereby turning them into extremist people;
• The Federal Government and the governments of several states are eliminating your right to self-determination via voting by systematically ignoring all evidence placed before them of voting irregularities and compromised electronic voting machines;
• Etc., etc., etc....

In case you haven't been paying attention for the last seven years, it may interest you to know: You are being systematically fucked. The press has been bought off; they will do nothing to help you. There is only one person left who can do something about it...

But, you see s/he's too busy, and can't be bothered, at least not yet. See, there was the American Idol finale a couple weeks ago where whatshisface (or was it whatsherface?) won, thanks to your attentive help and eager phone calls. Oh! And, and missing the final episodes of Survivor, Will and Grace, The Amazing Race, and House were simply unthinkable! And then there was "March Madness" back in... uh, March, I guess...

"Public corruption? Senate scandals? Incompetent emergency management officials? Mendacious Attorney Generals? Fuck that! I need to know if Natalee Holloway is still dead... [dailykos.com]"

See? Very very busy. So if something important is going on, it will need to be really important before we get his/her attention and they start to act and save the United States. It will need to be shocking so that we grab his/her attention. And it will need to be big so that they understand the importance of acting now. In fact, it will need to be so big that it will swamp out all the other "important" stuff for months.

And so, the question we all need to ask is:

What Will It Take?

Schwab

In a previous post...

[erroneus]

...I stated that it's time to take a stand. And from what I've seen so far, the US Congress is also pretty pissed off about the way the executive has been skirting the checks and balances that this republic depends on. Bush does whatever he wants, claims it's legal and when anyone attempts to validate the claim in court, he claims executive priviledge or state secrets. He hasn't replaced ALL of the supreme court judges yet but I wouldn't be surprised if another judge was replaced pretty soon with the turnover in presidential appointees lately. And once he has enough of his cronies on the bench, THEN he might let a couple of issues actually reach the courts for decision.

I keep hearing that line from Star Wars, Episode 1 --- "...I will MAKE it legal!"

Re:Bah!

[Intron]

Yes. I understand women are allowed to vote and slavery has been abolished.

Re:Proposed Strategy

[Anonymous Coward]

Perhaps, but we aren't talking about military missions. We are talking about large scale data collection on the entire US populus.

The government derives its power from "We the People" When they target everyone for investigations and then try to keep it from us, that's out of line. The people try to use the legal system to stop this and are shut down.

You may believe that this administration is trustworthy. However with a precident of holding people without trial indefinitely, collecting personal data on every single citizen, searching and seizing with "sneak and peek warrants" or if it is "terrorism" related potentially without warrants at all, and making reporting on any of these activities illegal etc... It is a pretty solid ground for a totalitarian government to pick it up and run with it.

Re:Proposed Strategy

[gstoddart]

The information itself may be classified but the fact of whether or not they collected it shouldn't be.

Unless they're not willing to share the fact that they've collected it, and deem even that to be a state secret.

All they have to do is say "Your honour, if people knew the ways in which we spied on them, they'd switch to other ways to avoid us". If they were stubborn, or just the invasive idiots we believe them to be, they'd fight this just on principle and to deny you the knowledge of if they did it or not.

Heck, it's a brilliant legal strategy. Let anyone make any old allegation about government wrong-doing, and simply invoke state secrets. "We're not saying we did something wrong, or even that we did it but we think it was right, we're just simply not going to tell you, and you can't make us."

The perfect magicians sleight of hand -- while you're looking over here at the left hand, the right hand has snuck into your house and rifled through your stuff. Of course, that doesn't help you determine if the left hand just did something naughty.

EFF's bungling again

[Anonymous Coward]

The issue is that EFF took this as a press-release opportunity and not as a get-to-the-bottom-of-it opportunity. From EFF's first press release on their lawsuit, they believed the NSA would try to shut the case down with state secrets (and, when the NSA filed the paperwork to do so, it said "NSA is not required to demonstrate specific harm when invoking this statutory privelege, but only to show that the information relates to its activities" (http://www.eff.org/legal/cases/att/DeclKeithAlexa nder.pdf). Knowing that, the EFF made sure that *every* brief it filed shows, in several places, that the lawsuit relies on information relating to the NSA's activities. Is it possible they wanted the case shut down?

"If state secrecy can prevent us from preserving the rights of millions upon millions of people, then there is a profound problem with the law," says [EFF spokesman, well before even filing the case]" (http://www.wired.com/news/technology/0,70126-0.ht ml). Sounds a lot like "Dr. Felton, don't publish the paper and make a big stink about it, that'll make headlines." Reminds me of something I read on Groklaw (http://www.groklaw.net/articlebasic.php?story=200 41206134029429 -- "Page Four is filing the lawsuit. ... Page Five is staging a press conference or working with their allies at the network news magazines to generate incendiary coverage about their lawsuits").

EFF's lawsuit was originally about telecommunications laws that specifically prohibit phone companies from wiretapping for the government without first seeing the government warrant. If EFF had stuck to that, it wouldn't have triggered the state secrets issue. Instead, they made sure *every* document they filed brought up state secrets, and they followed *every* court paper with press releases. Now they're shocked, shocked, that they're getting shut down.

Moral of the story: don't turn your own lawsuit into a circus.

Excuse me while I ignore the EFF.

Re:Proposed Strategy

[NoTheory]

The Fifth Amendment protects SELF-incrimination. It does not protect you against testifying about other matters. If you have been called to testify and have been sworn in, and do not testify, you can be held in contempt of court or congress. At least, so far as i understand it. Since Michael Hayden != NSA or any telecommunications company, the 5th amendment has no relevance to this case.

Re:Uncle Sam will get to collect all he wants.

[plasmacutter]

the majority of this reply is clearly idealogical, no i don't propose you being gagged, and by the way people who moderate are not allowed to post replies in the same article, I would not have modded you troll

that said, i do want to address some things:

But you need to understand something: We are at WAR.
war against what? an abstract concept of "terror"? that concept is being ever expanded to encompass, at latest, journalists and whistleblowers.
The definition of war in the constitution is clear, war must be officially declared by congress against a sovreign foreign aggressor. Officially, the "wars" in iraq and afghanistan are over, and are now classified as occupations. Also, terrorists have no nation, but that does not change the fact that constitutionally you cannot declare war against them as they are not a nation, nor can you declare war against a concept like "terror".
So no, the government is not entitled to suspend habeas corpus as lincoln did, or to intern japanese like roosevelt, both of which, by the way, are looked upon with great sorrow by our people.

War is not pretty, and yes, the government is violating our privacy. Uncle Sam knows I'm having pizza for dinner. I COULD CARE LESS.

you you you.. this nation is made of more people than you, and a major theme in the founding of this nation and the constitutional guarantees provided is to protect the minority or the "unpopular" from the will/wrath/oppression of the majority.

I might also remind you that you are more likely to be involved in a non-terrorist related plane crash, die in a fatal car accident, be murdered in a home invasion, or (in my case) win a luxury car in a sweepstakes, than to be bombed or slain in a terrorist incident.

They are using your own fear against you. They can easily perform these same legal procedures within the law through visa, and I would be perfectly fine with that, but they refused.

We have no legal recourse against them at the moment because our elected officials are laying down on the job they are supposed to be doing in protecting and representing the american people and constitution, but that does not mean the telcos are immune. By voluntarily handing over this information they have violated federal laws and their own terms of service contracts, and as such should be held liable. There is no need to delve deeply into the issue, all that is needed is to confirm they did hand over those records, and they will be guilty as charged.

I will quote:
First they came for the Jews
and I did not speak out
because I was not a Jew.
Then they came for the Communists
and I did not speak out
because I was not a Communist.
Then they came for the trade unionists
and I did not speak out
because I was not a trade unionist.
Then they came for me
and there was no one left
to speak out for me.

I'm a populist and a social (though not economic) libertarian. As such they will definitely come for me first. so let me ask, when sir will they come for you.

Re:Uncle Sam will get to collect all he wants.

[QCompson]

if we don't take EVERY POSSIBLE MEASURE to prevent an attack (whatever manner or form it may be), THERE MAY WELL NOT BE A CONSTITUTION TO PROTECT OUR RIGHTS WITH.

So you don't care if we lose some constitutionally protected rights in the war on terror, because otherwise the scary boogeymen terrorists will blow us all up and then we wouldn't have a constitution anyway, right?

Place a lot of trust in the government, do you? Wouldn't it just be better then to tear up the constitution and structure ourselves as a military dictatorship? I imagine you and you pizza-filled boring life would be safer then. Seriously, if you are willing to take EVERY POSSIBLE MEASURE to prevent an attack, why not 24/7 martial law? Would you support temporarily abandoning our justice system? We could just shoot suspected terrorists on sight. I'm curious to hear just how far you're willing to go to "win" this WAR.

Another step to totalitarism

[flibuste]

Dissolve any lawsuit against invasion of privacy through "State secret"

Get rid more and more of freedom of speech everyday.

Arbitrarily deport and detain people to lawless countries to interrogate them freely.

Use torture on presumably innocent people.

Best recipe for growing a fascist country. Good job Bush and good luck fellow americans!

Will this even help anything?

[bigtrike]

The thought that this type of thing is even necessary is based on the flawed assumption that terrorists are trying to be covert in the first place.

Several of the 9/11 terrorists were wanted as suspects and living under their real names for at least 9 months in Los Angeles. One even purchased a car in his own name and was listed in the Los Angeles white pages.

Even if a massive reduction in privacy would help save a couple lives, I'd personally rather not live a life without liberty. We're mocking the sacrifice made by hundreds of thousands of patriots who have died to protect our liberties by giving them up without much of a fight.

Re:Uncle Sam will get to collect all he wants.

[DM9290]

If the Government wants to find out who I talk to and when... it's pretty easy to get that information now as it is.

without a warrent? how do they do that?

If they want to actually listen... it's a waste of time but hey, what do I care? Knock yourself out.

May I listen as well? Its a waste of time but I'll be keeping a record just in case I ever need it for your protection.

My point: I hardly think the Government is interested in what I am asking my wife to make for dinner tonight, or whether I need to pick up anything at the store on the way home to help in making said dinner.

You are making the argument that the government has the right to listen to something because it has no interest. What if you are ARGUING with your wife? Perhaps that is of interest. What if your wife mentions that she is pregnant. What if 9 months later... no baby is born. What if men in black show up and arrest you and your wife for having an illegal abortion. (there was no visit to the clinic.. so that creates probable grounds to believe there was an illegal abortion). What if you are charged and your name is put up in the local newspaper.

What if after an investigation the prosecution is dropped on the basis that there is no reasonable prospect for a conviction, but its too late.. the election in which you were a candidate has already happened and you were defeated because of the air of suspicion surrounding your lifestyle. (afterall you campaigned on a pro-life ticket).

Use your fucking imagination!

They want to know when, where and how the next attack on our country is going to take place.

And listening to your conversation is not relevant... so by your logic... the government OUGHT to listen to it?

What if come FUTURE president just wants to be "president for life", and decides to use the information to blackmail all of his (or enough of his) political enemies, and impose a dictatorship. Perhaps you did something you were ashamed of when you were a teenager.. perhaps you dont want that phone conversation becoming public .... perhaps that can be used to influence your future behavior.. Do you want to condemn todays children to a future of serving the executive branch as blackmailable pawns?

By then it will be too late.

I don't break any laws as I conduct my telephone conversations, nor do (I would speculate) 99.99% of Americans.

So now you are implicitly arguing that it is legitimate to spy on citizens to insure they are in full compliance with law?

You are also living in a fantasy world that the only thing people are embarassed or ashamed about is CRIME. People are embarassed about simple nudity!! You can't think of anything which could be used to deprive people of free will?

We are already speeding down that slippery slope, that the totalitarians insist on denying even exists.

Quite frankly, if some politician wants to call a gay sex hotline, that has nothing to do with his ability to be a politician, and yet it is the type of information he would do almost anything to keep out of the public light. Thereby making him a potential stooge for the Executive Branch, foreign powers, fundamentalists, criminals. This is a threat to the seperation of powers.

What if some less than honest NSA agent (suprise THEY ARE ALSO MOTIVATED BY GREED) decides to make some extra cash and mines the database for blackmailable behavior. The phone companies by themselves would not have the power, but the NSA can connect these records to tax records and god knows what else they've got.

I wont even contemplate what would happen if Al Quaeda or a foreign government ever figured out how to tap into all of these massive centralized data warehouses that you dataphiles seem to think are so wonderful.

But if we catch terrorists and avert attacks, what's the harm in the government monitoring these phone calls? It doesn't affect my daily life one bit - but an attack not thwa