The U.S. Department of Justice filed suit in U.S. District Court Oct. 2 to block the state`s investigation into whether Verizon and AT&T provided the National Security Agency with access to customers` private phone records.
The federal government contends state secrets would be compromised by any investigation, and that national security matters can not be reviewed by a state agency such as the Vermont Public Service Board, which ordered the investigation.
The American Civil Liberties Union of Vermont and the Vermont Department of Public Service -- a state agency -- both asked for the investigation this spring, following reports in USA Today that the NSA was amassing a huge database of Americans` private phone records -- whom customers called, when they called, and how long they talked.
AT&T, Verizon, and BellSouth were alleged to be cooperating with the government in providing access to customers` records. Other telecommunications companies had refused to cooperate, citing privacy concerns and lack of governmental authority to gather the data.
The ACLU-Vermont complaint was one of 20 similar complaints filed by ACLU affiliates around the country before state public utility commissions. The Vermont complaint had gone further than any of the other complaints -- to the opening of an investigation and the setting of a "discovery" calendar to guide the investigation.
In June the PSB invited the federal government to request "intervenor" status in the case, meaning federal authorities would be able to participate in the process by filing and responding to motions, submitting information for review, and participating in hearings.
The federal government refused the invitation. Instead, the U.S. Department of Justice answered with a threat to sue the state if the investigation wasn`t shut down. The Oct. 2 lawsuit is the threat realized.
A major issue in the case has been whether the "state secrets privilege" can be used to thwart the investigation. The federal government has contended it can. But the PSB has said that the privilege doesn`t apply to this case. In its denial of a motion by Verizon to dismiss the request for an investigation, the board wrote last month:
"Based on the record before us, we conclude that the state secrets privilege does not apply here, largely because it has not been properly claimed, but also because it would not apply to all of petitioners` claims and because some of the matters involved in these dockets are not secret. We also conclude that dismissal is not required by the National Security Agency statute, the Foreign Intelligence Surveillance Act, the statutes and rules regarding classified information, or the Intelligence Reform and Terrorism Prevention Act of 2004."
The board then defined the scope of investigation as the complaint was to move forward:
"Because of prior public disclosures by Verizon, we also specifically authorize the parties to conduct discovery on whether Verizon has provided local calling records to the NSA, whether Verizon provided information to the NSA before February, 2006, and the conditions under which Verizon provides others with access to its customer records."
Read the federal government`s lawsuit against the state.
Access other documents in the NSA phone records case.
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