U.S. sues to block Vt. phone inquiry
By LOUIS PORTER Vermont Press Bureau | October 04,2006
MONTPELIER — The federal government has sued the state's utility regulators to stop an investigation into whether the National Security Agency gained improper access to Vermonters' phone records.
But state officials have vowed to continue their quest for answers, despite the lawsuit and the request for an injunction it contains.
The matter, and several other similar cases around the country, may prove to be a testing ground for questions of how to balance personal rights and national security as well as federal versus state authority, experts and officials said Tuesday.
The Public Service Board began the investigation earlier this year at the request of the Public Service Department, phone company customers and the American Civil Liberties Union of Vermont. The federal government declined to become a party in the board investigation, instead filing its lawsuit in federal court Monday to stop the inquiry.
The state regulators have asked for information from Verizon and AT&T, the two companies that operate in Vermont and allegedly provided access to phone records to federal authorities.
But the state made the requests "without proper authorization from the United States" according to the unusual federal lawsuit.
"I will continue to resist efforts by federal agencies to interfere with Vermont's consumer protection laws," Gov. James Douglas said. "We are just asking if they gathered these records and do they maintain them. We are being blocked from even asking the question, which is frustrating."
Commissioner of Public Service David O'Brien, who is named in the lawsuit along with the members of the board, agreed.
"There is confusion, or a dispute, here about how far the states can go," he said. "We think we have a right to protect our consumers or be assured their information is not being shared."
In the lawsuit, federal lawyers argue that the state is stepping outside its jurisdiction and could jeopardize national security if it continues.
"The defendant state officers' attempts to order the disclosure of such information are invalid under the supremacy clause of the United States Constitution and are preempted by the United States Constitution and various federal statutes," according to the lawsuit, which is expected to be heard by Judge William Sessions in U.S. District Court in Burlington. The state regulators "have no authority to investigate the alleged foreign-intelligence gathering functions of the United States."
But Stephen Dycus, a professor at Vermont Law School, said that argument may not really relate to the board's inquiry, since its investigation is about whether citizens' rights and state rules were violated, not about intelligence gathering.
In addition, federal statutes and executive orders cited in the lawsuit about the release of secret information may only bind federal employees who "leak" information, not the recipients of the information, Dycus said. That matter is now the subject of a separate lawsuit not involving Vermont.
Finally, although the U.S. Department of Justice lawsuit mentions the "state secrets privilege" as a reason the board's investigation should not continue, that privilege is usually invoked in court cases, not administrative procedures like the work of the Public Service Board, Dycus said.
"I think far too many people imagine what the government is doing, if it is doing this, doesn't concern them. They are too ready to accept the assurance that this only impacts the bad guys," he said. "That is just wrong and it is dangerous thinking."
A Department of Justice spokesman declined to answer questions about the matter because the litigation is ongoing. Verizon and AT&T officials also declined to comment on the case, although AT&T released a short statement on the matter.
"AT&T is fully committed to protecting our customers' privacy and we do not comment on matters of national security," the company said.
It is not clear what will happen to the related ACLU and phone company customer complaint to the board, which was initially filed separately, if the injunction is granted.
The basis of that case is trying to determine if the phone companies violated their customer privacy agreements, not whether the federal spying program does, in fact, exist.
"We just want to know if customers of phone companies in Vermont can be assured their phone records will be kept private unless they are notified otherwise," said Allen Gilbert of the ACLU of Vermont. "We simply want to know if Verizon and AT&T are living up to their stated privacy policies, a copy of which is in the front of every phone book."
Richard Cowart, a long-time regulator in Vermont and now a consultant with the Montpelier-based Regulatory Assistance Project, said that a lawsuit initiated by the federal government against a state board or department is unusual.
"It is extremely rare," he said, but he added it is "not a surprise in this instance, given the statements the federal government has made" about the matter.
The lawsuit and board inquiry may go some way to answering questions the states and federal government are trying to figure out about where the jurisdiction of the two levels of government meet, O'Brien and Douglas said.
"There are lawful ways for this (phone record) information to be shared," for instance through subpoenas and warrants, O'Brien said. "Somewhere, somehow we have to come to grips with the fine line between national security and individual liberty."
"Ultimately, judges will decide what our rights as a state are," he said.
Contact Louis Porter at firstname.lastname@example.org.