Re: Verizon says phone record disclosure is protected free speech

[David Farber <dave () farber net>]

Begin forwarded message:

From: Ethan Ackerman <eackerma () u washington edu>
Date: May 8, 2007 2:02:32 PM EDT
To: dave () farber net
Subject: Re: [IP] Verizon says phone record disclosure is protected  
free speech

Greetings Dave,

If I understand correctly, Verizon is now arguing in the NSA spying
cases that turning over records to an arm of the government is
protected 1st Amendment speech, even if the process of turning them
over was of questionable legality.

Maybe they want to run that by their co-defendants AT&T first, because
AT&T has argued just the opposite...

A little over a year ago, AT&T employee Mark Klein turned over
proprietary records to the US District Court (an arm of the
government) hearing the NSA spying cases brought by EFF.  AT&T
strongly objected, asserting trade secret claims and that the process
of turning them over was of questionable legality.

Maybe AT&T's proposed solution in its case should apply here as well:
"The Confidential Documents were taken outside of the discovery
[[[FISA]]] process. They contain confidential and proprietary AT&T
[[[US citzen caller's]]] information. AT&T therefore has filed the
Confidential Motion requesting that the Court order plaintiffs
[[[NSA]]] to return the documents and make no further use of them
unless and until they are obtained by proper [[[FISA-compliant]]]
means."

from    http://www.eff.org/legal/cases/att/ATT38_sealing_motion.pdf

bracketed comments mine, obviously.


On 5/8/07, David Farber <dave () farber net> wrote:
> Begin forwarded message:
>
> From: Joshua Tinnin <krinklyfig () gmail com>
> Date: May 8, 2007 11:09:44 AM EDT
> To: David Farber <dave () farber net>
> Subject: Verizon says phone record disclosure is protected free speech
> Reply-To: krinklyfig () gmail com
>
> http://arstechnica.com/news.ars/post/20070507-verizon-says-phone-
> record-disclosure-is-protected-free-speech.html
>
> Verizon says phone record disclosure is protected free speech
>
> By Nate Anderson | Published: May 07, 2007 - 01:48PM CT
>
> Verizon is one of the phone companies currently being sued over its
> alleged disclosure of customer phone records to the NSA. In a response
> to the court last week, the company asked for the entire consolidated
> case against it to be thrown out - on free speech grounds.
>
> The response also alleges that the case should be thrown out because
> even looking into the issue could violate state secrets, of course,  
> but
> a much longer section of the response tries to make the case that
> Verizon has a First Amendment right to "petition" the government.  
> "Based
> on plaintiffs' own allegations, defendants' right to communicate such
> information to the government is fully protected by the Free Speech  
> and
> Petition Clauses of the First Amendment," argue Verizon's lawyers.
>
> Essentially, the argument is that turning over truthful information to
> the government is free speech, and the EFF and ACLU can't do anything
> about it. In fact, Verizon basically argues that the entire lawsuit  
> is a
> giant SLAPP (Strategic Lawsuit Against Public Participation) suit, and
> that the case is an attempt to deter the company from exercising its
> First Amendment right to turn over customer calling information to
> government security services.
>
> "Communicating facts to the government is protected petitioning
> activity," says the response, even when the communication of those  
> facts
> would normally be illegal or would violate a company's owner  
> promises to
> its customers. Verizon argues that, if the EFF and other groups have
> concerns about customer call records, the only proper remedy "is to
> impose restrictions on the government, not on the speaker's right to
> communicate."
>
> With all of the phone company cases consolidated into one master case,
> Verizon is hoping to have the case thrown out on free-speech grounds,
> putting an end to its legal troubles over the issue. Should it  
> fail, the
> Bush administration is already preparing to ask Congress for  
> retroactive
> immunity for all telecommunications companies that assisted the
> government after September 11, 2001. The government is also fighting
> hard in court on behalf of the phone companies, filing repeated briefs
> which claim that "state secrets" trump even the legality of the  
> alleged
> security programs.
>
>
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