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.'"

Comments

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.

Re:Proposed Strategy

[TheSpoom]

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

Re:Proposed Strategy

[CRCulver]

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.

The NSA wouldn't be willing to do this because part of ensuring the efficacy of its interception capabilities is making no public comment whatsoever. See Bamford's The Puzzle Palace and Body of Secrets for a layman's introduction to why keeping one's mouth totally shut is the only way to defend SIGINT gathering.

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: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.

Re:Proposed Strategy

[demachina]

I found the Criminal Information Protection Act which codifies classified information in a trial, but as I expected it is completely written in the context of the government being the plaintiff when they need to use classified information to convict a defendant of espionage, terrorism or leaking. You see the government will divulge classified information to nail you but they wont allow you to use classified information to nail them.

Having researched it I agree that the government will try to just use the state-secret privilege so Hayden wont even make it to the stand. If by some miracle the judge doesn't cave to it and Hayden does have to testify then I assume either CIPA will have to come in to play and be bent to this novel case, or Hayden will just refuse to answer any questions that would divulge classified information because it would in fact incriminate him in the process if he did it in a public court.

The Wikipedia article on the states-secret privilege is quite interesting and probably more interesting than the WSJ article.

Its not even a law, its just a precedent that was established during the McCarthy era where the Air Force used it, apparently fraudulently, to cover up the fact a B-29 crash was due to poor maintenance of the air plane, and was basicly negligence on the part of the Air Force.

"In United States v. Reynolds (1953), the widows of three crew members of a B-29 Superfortress bomber that had crashed in 1948 sought accident reports on the crash, but were told that to release such details would threaten national security by revealing the bomber's top-secret mission. The Supreme Court ruled that the executive branch could bar evidence from the court which they had deemed a threat to national security. In 2000, the accident reports in question were declassified and released, and were found to contain no secret information. They did, however, contain information about the poor state of condition of the aircraft itself, which would have been very compromising to the Air Force's case. Many commentators have alleged government misuse of secrecy in the landmark case."

Just goes to show you that once you let your government establish an illegal and unconstitutional precedent, during times of war or paranoia, to screw you, they can continue to abuse it forever. The Bush administration has been successfully using the fact that Abraham Lincoln suspended habeas corpus during the civil war to justify denying American citizens basic due process today, and that FDR spied on American cables in World War II to justify spying on Americans now indefinitely.

Another interesting invocation of the "state-secret privilege" was in 2005 in a patent suit brought against none other than AT&T. Apparently a company called Crater Corp thinks AT&T is violating its patents for "WetMate underwater fiber optic coupling devices" which I'm guessing is probably being used by the U.S. to tap and evesdrop on fiber optic cables on the ocean floor. I would assume it must be used for tapping otherwise it wouldn't be classified. Now the U.S. has used underwater tapping technology against the Soviet Union for a long time, both on copper and fiber optic cables, but I bet you the NSA in concert with the U.S. Navy is underwater tapping any fiber optic cable they can't eavesdrop on land with the help of U.S. phone companies. It would be an interesting case to tack in to this case against AT&T.

The "state-secret privilege" was also use to defeat a case brought by Maher Arar, the Canadian detained by the U.S. at a New York Airport on his way home to Canada. You probably remember reading about it here on slashdot. He was shipped by the U.S. to Syria where he was abused for a year or so before Canada finally managed to free him. His crime as best I remember was he signed as a reference on a lease for a friend of a family member

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.

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: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:Bah!

[Intron]

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

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*?

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:Really now...

[10100111001]

WHY IS NO ONE IN THE MEDIA ASKING THESE QUESTIONS?

No one in the mainstream media is asking these questions because if they did they would lose their jobs. More than 95% of all the media we see (radio, newspapers, tv & movies) comes from one of five media corporations. These corporations are interested in maintaining and gaining power. They do not want the general population to start asking these questions, so they rarely allow any dissenting viewpoints to enter the mainstream media.

If you want to hear these and other questions being asked, you need to go to independent media sources.

Re:Really now...

[demachina]

"WHY IS NO ONE IN THE MEDIA ASKING THESE QUESTIONS?"

After 9/11 the Bush Administration was extremely successful in their "You are either with us or you are against us" strategy which painted anyone who questioned the Bush administration's actions, including journalists, as unpatriotic, or practically terrorists themselves. This is a classic propaganda and nationalism card and they played it very well. This campaign along with the general mood after 9/11 completely terrified journalists out of questioning anything the Bush administration did. Its just now starting to wear off because a few journalists are realizing they were played for complete suckers by the Bush administration.

Rupert Murdoch built Fox News to completely destroy the liberal media and independence in the news room and it worked. He single handedly turned news networks in to sensationalist propaganda tools for the executive branch, witness Fox's Tony Snow is now the press secretary. The fact Fox sky rocketed to #1 news network after 9/11 made all the other networks try to emulate them, not refute them. CNN is now an embarrassing Fox News parody, they aren't even good at it, so they are tanking. I can't stand watching CNN anymore. One liberal media outlet down. The Daily Show is the only liberal news outlet left and its a comedy show, parody. The best thing that could happen to American media right now would be for Time-Warner to sell CNN back to Ted Turner so he could rebuild a news network to challenge the Fox propaganda machine.

TV journalists are hired and rise through the network ranks based on how photogenic they are and on how much of a sycophant they are to both corprate executives, and politicians, not based on their ability as investigative journalists. The networks White House Correspondents and the Pentagon correspondents are just regurgitating the stuff the White House and the Pentagon want them to say on the TV that night. They are thinly veiled propaganda tools of the government. They don't do ANY independent investigation.

Most media outlets are now owned by large corporations thanks to consolidation, and most large corporations have no interest in investigative journalists who attack the government or stoke controversy that might cost them revenue or political good will.

One of the more disturbing invocations of state-secret privilege by George W. Bush was on November 1, 2001, when he signed Executive Order 13233. This order allows George W. to unilaterally prevent any access to his presidential papers for 12 years after he leaves office, unless he and only he authorizes it. Even if the sitting president authorizes it, he can still veto the release.

If its upheld, this should prevent future Congresses or courts from even seeing incriminating executive branch documents to investigate or charge him with illegal or unconstitutional acts, until 2020. Future Presidents can see them but can't release or act on them unless George W. authorizes it. You have to figure that a few weeks after 9/11, George W. was about to sign some orders to do some things that future governments might consider criminal or unconstitutional and his lawyers created this executive order so he could unilaterally obstruct any future investigations, even when he is no longer President. What might those acts be? Massive domestic spying on Americans without court approval, a prison on Gitmo outside the jurisdiction of any court, arresting American citizens without due process, authorization of torture by the military and CIA, secret prisons, launching an illegal war in Iraq based on a web of lies, dramatic expansion of the Rendition program to snatch people anywhere in the world, in violation of other nation's sovereignty to send people to secret prisons to be tortured?

Rendition is particularly apt in a discussion of state-secret privilege. It was used to kill a case brought by

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:Still Think the US isn't Headed for Fascism?

[pete6677]

Do you care to back up any of the lofty claims you just made (George Bush crimes and 9/11 conspiracies)? No, I suspect not. I'm guessing you'll just make an immature profane rant of a reply. Grow up little kid, your crap is getting old.

For the record, I am not a G.W. fan by any means, but there is plenty of real evidence to be used to bash Bush without resorting to hysterical fabrications.

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).

No wiretaps involved here

[steveg]

There are wiretaps involved with the NSA's FISA violations, but there has been no accusation of domestic wiretapping in the suits against the Bells.

The Bell suits all have to do with turning over call records, not wiretapping. Wiretapping is *live* monitoring of the contents of telephone calls, and the legal bar to performing a wiretap is considerably higher than "trap and trace" or "pen register" monitoring. The massive turnover of call records is equivalent to trap and trace and pen register, and according to the PATRIOT Act, all the authorities have to do to get an order authorizing these latter types of surveillance to to atest that such monitoring is "necessary to an ongoing investigation."

So when the NSA claims that those requests for records was legal, they're probably right. The question to be asked, of course, is *should* it be legal, and that's a whole different question. Congress had the chance to fix that, but they passed the renewed PATRIOT Act, so I guess that means that *they* thought it was OK.

And there may be actual domestic wiretapping going on, but we don't know that since if there is, that story hasn't yet broken.

Vote!

[posterlogo]

I know that people are a bit disillusioned right now with the going-ons in government, and feel waiting until Nov 2006 or 2008 to vote is not enough to deal with the immediate threats and violations of the constitution. A unoffical poll of Slashdot posters would demonstrate a near-unanimous discomfort with the wiretapping, but some of the same people would not be willing to vote out the perpetrators. I ask that everyone here put their money where there mouth is. In this particular matter, there is one party that is thrilled to be spying on Americans and questioning our patriotism, the party of "with us or against us": the Republicans. Though it seems almost certain that the violation of the bill of rights offends most republicans (just look at gun-control attempts), in this case the mob mentality has overruled just about any one Republican's personal moral choices. The solution is to not vote Republican: if you are truly uncomfortable with the way the country is headed, it is necessary to realize that the neo-con movement has usurped the moral authority the Republicans once had.

What Will It Take?

[ewhac]

Government and corporations, working hand in hand!

There's a word 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..."

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

Re:He Could Lie

[Darby]

This is my $0.02 about why I do not subscribe to the belief that Bush intentionally mislead Congress and the American public. If blame is to be placed on anyone for the war, it should be on the NSA, CIA and Executive/Congressional branches of the government for crippling our ability to gather reliable intelligence in the field.

You make some very good, well presented points, but you left several major critical facts out of your analysis.

We know for a fact that one of if not the most important goals of this administration since before they even got into office was starting a war with Iraq. We know for a fact that they knew the American people wouldn't go for it. We know for a fact that they knew that it would require a "Pearl Harbor" level event to convince the American people to back the invasion.
We know for a fact that once said event happened that they immediately began agitating to attack Iraq even though there is no evidence of their involvement. We know for a fact that they intentionally misled people in an attempt to make them think Iraq was responsible for 9/11..

If you are not aware of all of these facts, then feel free to read it in their own words.

Add in the fact that the CIA specifically told them not to run with the known bad information that they had and they intentionally ignored it in order to make out Saddam to be a big threat and it's obvious that the situation is not even anywhere near as unclear as your argument would indicate.

Re:State Secrets Privilege was abused from the sta

[molo]

You can know for sure. Here are the declassified documents:

Declassified case appendix which contains the allegedly sensitive documents, via Federation of American Scientists: http://www.fas.org/sgp/othergov/reynoldspetapp.pdf

Also that kind of under-cover spy information has not been what the SSP has been used for. Read the Wikipedia articles about Siebel Edmonds for an example of the modern abuses.

-molo