AG, PUC, Ask Court To Dismiss Bush Administration Suit That Calls Verizon Statements "State Secret"

September 21, 2006

Attorney General Steve Rowe today filed court papers on behalf of the Maine Public Utilities Commission (MPUC) in U.S. District Court in Bangor arguing that the federal government's lawsuit against MPUC should be dismissed because it does not meet the criteria for a federal lawsuit, and it does not involve any secrets, let alone "state secrets."

On August 9, 2006, the MPUC attempted to resolve citizen complaints against Verizon alleging breach of customer privacy. The MPUC ordered Verizon to provide sworn affirmations of the truthfulness of seven representations that it made in its press releases that were filed with the MPUC. These seven statements are:

Verizon was not asked by NSA to provide, nor did Verizon provide, customer phone records from any of its businesses, or any call data from those records.

None of these companies-wireless or wireline-provided customer records or call data.

Verizon's wireless and wireline companies did not provide to NSA customer records or call data, local or otherwise.

Verizon will provide customer information to a government agency only where authorized by law for appropriately-defined and focused purposes. When information is provided, Verizon seeks to ensure it is properly used for that purpose and is subject to appropriate safeguards against improper use. Verizon, does not and will not, provide any government agency unfettered access to its customer records or provide information to the government under circumstances that would allow fishing expeditions.

Verizon acquired MCI, and Verizon is ensuring that Verizon's policies are implemented at that entity and that all its activities fully comply with the law.

On August 21, the federal government sued Verizon and the MPUC, claiming that the MPUC inquiry threatened to divulge "state secrets" concerning the administration's warrantless wiretapping and telephone call data mining programs.

In his 18-page motion to dismiss, Attorney General Rowe points out that the MPUC has only asked Verizon to verify and affirm Verizon's own prior, public statements, which Verizon filed in press release form with the MPUC. Attorney General Rowe said, "The Maine PUC has ordered Verizon to affirm the truthfulness of statements the company filed with the PUC and made in public press releases. These statements are certainly not "state secrets." In fact, they are not secrets at all."

Maine Public Utilities Chairman Kurt Adams said, "We received complaints from Maine citizens understandably concerned that their phone records and phone conversations may have been divulged to the United States government without a warrant, and without any judicial oversight. As a result, we required that Verizon confirm statements it made to us and the public denying that it had provided records to the federal government. The response from the federal government? They sued us."

Adams said, "We intend to protect the rights of Maine citizens in federal court and to fight the intrusion of the federal government into the integrity of our process."

The Attorney General also argues that the federal court does not have jurisdiction over the case because the case does not "arise under" federal law, but rather seeks to assert the federal evidentiary privilege that protects state secrets from disclosure. The Attorney General's motion cites case law that requires evidentiary questions to be decided in the proceedings in which they arise. Therefore, the proper forum for the federal government to assert the privilege would be in the MPUC proceedings, with a possible appeal to the Maine Law Court.

The Attorney General points out that the federal government did not properly invoke the state secrets privilege in this case, because the filed declarations of Lieutenant General Keith Alexander and John Negroponte refer to another court case involving a different phone company and very different facts, and do not meet the requirements of the federal case law on the privilege.