The Maine Civil Liberties Union in conjunction with 21 private individuals sued Verizon seeking to determine whether the company had cooperated with the NSA in monitoring real-time telephone communications and e-mail. The Maine Public Utilities Commission (PUC) issued an order demanding Verizon turn over such information, to which Verizon responded that it could neither confirm or deny whether it had participated in such activities. The Federal Government then sought an injunction against the PUC regarding the order. The case is UNITED STATES OF AMERICA, Plaintiff, v. KURT ADAMS, et al., Defendants.
The injunction was granted on February 8, 2007.
CASE SUMMARY
PROCEDURAL POSTURE: The Maine Public Utilities Commission (PUC) issued a subpoena commanding a telephone company to show cause why it should not be held in contempt for its failure to comply with a PUC order in an action brought by telephone company customers. Plaintiff United States sued defendants, Chairman of the PUC, PUC members in their official capacities, and a telephone company, and moved to enjoin the PUC from attempting to force compliance with its order.
OVERVIEW: The telephone company issued press releases, which the PUC read as denying that it provided Maine customer records or call data to federal agencies and asserting that it did not provide such agencies with direct, unfettered access to the telephone company's network or data. The PUC's order directed the telephone company to file an affirmation that its representations were true and not misleading. Upon the motion of the United States, the court determined that the circumstances of the case--the United States suing the state of Maine based on concerns over national security--made abstention inappropriate. Applying the four-factor test for injunctive relief, the court concluded that the United States had demonstrated a likelihood of success on the merits. The Director of the National Security Agency submitted a sworn statement that the telephone company could not respond to the PUC investigation without harming national security. The interests of safeguarding potentially destructive information and of maintaining the status quo to allow a federal court to properly assess all relevant information weighed heavily in favor of the United States, and injunctive relief was granted.
OUTCOME: The court granted the motion of the United States for a temporary restraining order and preliminary injunction. The court preliminarily enjoined the PUC members in their official capacities from attempting to enforce the PUC order or the contempt subpoena against the telephone company, or from holding any hearing in connection with the matter. The court also preliminarily enjoined the telephone company from any response to the PUC in the matter.
The matter was of course immediately appealed.
As of March 13, 2008 the appeals court held essentially that Verizon would have been breaking the law had it cooperated with the NSA, but the matter of whether Verizon did cooperate and what information they may have given to federal officials or what was done with it remained undecided as it was held up in the federal government's "state secrets" argument. The judge declined to offer a ruling of that portion of the argument, pending a similar matter before the 9th U.S. Circuit Court of Appeals in California.
Then came FISA, which has in effect voided all these lawsuits.
The issue is complicated by PUC's approval of the sale of Verizon's assets in Maine to FairPoint telecommunications.
In any event, the lawsuit the MCLU initially brought was never definitively decided in court, and Verizon never handed over anything to the PUC.
Of course, I didn't need to do all that to figure it out, but I got curious, so I went digging. One of the points of the debate over telecom immunity was what it would do to discovery issues if criminal charges were ever sought. What the ACLU, EFF, et al have been attempting to do all this time and what the federal government has been trying to prevent is positive discovery of documentary information regarding the NSA's wiretapping scheme, documentation that could be used in further civil or criminal proceedings. At the time of the FISA vote, none of these lawsuits had been decided, and the ACLU's basic argument against FISA's telecommunications immunity provision was that it would prevent them from ever being decided.
In other words, no one (outside the NSA anyway) has seen a list of names of people who were wiretapped, ergo, he was lying.
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