Judge to hear PUC phone records case

Posted March 22, 2009, at 7:21 p.m.

BANGOR, Maine — A federal judge in California will decide whether the Maine Public Utilities Commission can force Verizon Communications to swear under oath whether it provided telephone call records of its customers to the federal government without a warrant.

U.S. District Judge Vaughn R. Walker has scheduled a hearing on May 7 in U.S. District Court in San Francisco on a summary judgment motion filed by the U.S. Department of Justice. The states of Maine, Missouri, New Jersey, Connecticut and Vermont are fighting to maintain their authority to protect telephone customer privacy through reasonable regulations, according to the opposition motion filed Friday.

The case began in May 2006 when a multicustomer complaint was filed with the PUC in Augusta after media reports about a National Security Agency eavesdropping program, according to a previously published Associated Press report. In answer to the complaint, Verizon referred to press releases, one of which declared the company was not asked for records by the NSA, and did not provide the records.

The PUC in August 2006 ordered Verizon to affirm in writing that what it had said was true. That same month, the Justice Department sued the PUC and Verizon in federal court arguing that the commission in Maine was pre-empted by federal law from investigating the alleged spying program. Citing the pending litigation, Verizon said it would not submit a statement as the PUC has ordered.

The Justice Department filed similar cases in four other states. The cases were combined and assigned to Walker in San Francisco in February 2007. Five months later, the judge ruled against the government. Walker found that neither the Supremacy Clause nor the foreign affairs power of the government prevented a state from asking about phone records, the AP reported. He did not rule on the state secrets argument.

At issue in the most recently filed motions is Section 208 of the Foreign Intelligence Surveillance Act passed by Congress. It prevents states from conducting investigations into an electronic communication service provider’s alleged assistance to the intelligence community.

Section 803 is an unconstitutional encroachment on state sovereignty, Maine Assistant Attorney General Christopher Taub argued in his 25-page motion opposing the government’s motion. States have exercised exclusive jurisdiction over in-state related telecommunications matters since the passage of the Communications Act of 1934, he wrote.

Attorneys general in Vermont, Missouri, Connecticut and New Jersey signed onto Maine’s motion.

“Section 803, by broadly prohibiting states from investigating and enforcing violations of their own laws, is an equal affront to state sovereignty,” Taub wrote. “In each state, the purpose of the administrative proceeding is to ascertain whether telephone companies have complied with state law.

“In this regard,” he continued, “it is of no consequence to the state whether, or to what extent, the alleged NSA call database described in the media actually exists. Neither are the states interested in the nature of the relationship, if any, between an element of the intelligence community and the telephone companies.”

“Section 803,” the Justice Department, quoting the amendment passed in July, argued in its motion, “reflects Congress’ view that ‘although states play an important role in regulating electronic communication service providers, they should not be involved in regulating the relationship between electronic communication service providers and the intelligence community’ through their investigatory powers.”

The government’s motion concludes: “Congress has spoken with unmistakable clear language to prevent the state defendants from exercising any authority to engage in these investigations.”

The Maine Civil Liberties Union Foundation on Friday expressed its support for Taub’s motion.

“In America, we should feel free to have private conversations on the telephone or share private information in e-mail,” Zachary Heiden, legal director of the MCLU Foundation, said Friday.

Judge Walker, 64, is a native of Watseka, Ill. He was appointed to the federal bench in 1989 by President George H.W. Bush. Before becoming a judge, he was in practice in San Francisco for 17 years.

There is no timeline under which Walker must make his decision. His ruling most likely will be appealed to the U.S. 9th Circuit Court of Appeals and, eventually, the U.S. Supreme Court.

Verizon Communications Inc. sold its northern New England land line business to FairPoint Communications last year.

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