Call Records Suits Meet with Spying Suit in Court Today

Telecoms, rights groups, and the government will square off today in an San Francisco court room in the continuing battle over whether telecoms are liable for helping the government spy on American's overseas phone calls and domestic phone records without getting warrants. It's the first hearing in the case after the government's surprise announcement in January that its efforts to eavesdrop on cross-border phone calls, when one party is suspected to have links to terrorist groups -- would be overseen by the very court it avoided getting warrants from since 2001.

While the action in San Francisco has mostly been about the Electronic Frontier Foundation's lawsuit against AT&T, some 46 other cases making similar allegations against other telecoms such as Bellsouth, Cingular, Sprint, and Verizon have been combined into 5 distinct, but related actions. Today, the court will decide if its landmark ruling in July, which said that the EFF suit could proceeded despite the government's assertion that it would damage national security because the government has admitted the program exists, applies also to the other cases.

The rub with that decision is that it applied to the government's admission that it was listening to phone calls. In February last year, USA Today reported that telecoms had also turned over domestic phone call records to the government, but the administration never publicly confirmed or denied it. Bellsouth denied it helped, while Verizon said it did not either -- at least not up until the point it acquired MCI. Qwest's former CEO Joseph Nacchio issued a statement saying the
NSA asked for records but he told them to come back with written authorization, which they never did.

The plaintiffs want the ruling letting the EFF case go forward to apply equally to the other cases, even though that decision is currently under appeal to the Ninth Circuit, which will likely hear oral arguments in the coming months. The plaintiffs argue that the company's admissions, paired with public statements from high powered Congressmen who were briefed on the telephone record data-mining who confirmed the program exists, means the program is no longer secret.

Congress has enacted, and the President has signed into law, numerous statutes whose sole purpose is to prevent the government from intruding on the privacy of its citizens. Plaintiffs respectfully submit that the wholesale violation of these laws cannot be allowed to continue merely because the violations have occurred in secret. If it is a secret, it is not a secret that the law countenances be kept; it is a secret that must come out, or the rights conferred by these statutes — and the Fourth Amendment — become meaningless. [...]

The Court’s rulings in Hepting (ed.note EFF case) should apply to the cases brought against the other Defendants, except the Court should find that the existence of the records program, and AT&T’s and MCI’s participation in the program, is no longer a secret, and permit discovery on Plaintiffs’ records claims.

For its part the government wants to wait and see if the original decision gets overturned and have the chance to assert that state secrets are involved in the other suits as well. The telecoms want the same thing.

Full documents here..