August 28, 2007

Kurt Adams, Chairman
Maine Public Utilities Commission
242 State Street, State House Station 18
Augusta, ME 04333

Re:  Telecommunication Company’s Cooperation with NSA Spying

Dear Chairman Adams,

            We are writing to alert you to an important development in your investigation of Verizon New England’s improper sharing of Maine telephone customer records with the National Security Agency.  In light of these new facts we hope that you will contact Congress and urge them not to interfere with your investigation.

As you know, in May 2006 James Douglas Cowie and 21 other Maine phone customers filed a 10-person complaint with the Maine PUC.  Soon after, USA Today revealed that since shortly after 9/11 at least two major phone companies - AT&T and Verizon - have been voluntarily granting the NSA direct, mass access to their customers' calling records, and that the NSA had compiled a giant database of those records. (Leslie Cauley, “NSA Has Massive Database of Americans’ Phone Calls,” USA Today, May 11, 2006).  Subsequently confirmed by 19 lawmakers, this program extends to all Americans, not just those suspected of terrorist or criminal activity. (Susan Page, “Lawmakers: NSA Database Incomplete,” USA Today, June 30, 2006).  Since these newspaper reports surfaced telecommunications companies and Bush Administration officials have been advocating that thecompanies be immunized from any liability for their participation in this program.

Last Thursday, the Director of National Intelligence, Mike McConnell officially confirmed the substance of the Maine complainants’ allegations.  In a wide ranging interview with the El Paso Times, Director McConnell described the Bush Administration’s rationale for changes to the FISA including the difficulty in securing warrants and the need to seek for telecommunications companies.  He stated, “[n]ow the second part of the issue was under the president's program, the terrorist surveillance program, the private sector had assisted us. Because if you're going to get access you've got to have a partner and they were being sued.”  (Chris Roberts, Transcript, “Debate on the foreign intelligence surveillance act,” El Paso Times, August 23, 2007). 

Verizon initially responded to the USA Today disclosures with two press releases denying involvement with the NSA.  Since then, Verizon and the National Security Agency have maintained that their program is so secret that any discussion of it or investigation would jeopardize national security and that any investigation or suit would inevitably be wiped out by the governments official privilege against revealing state secrets.

With the El Paso Times interview, Director McConnell has cast serious doubt on both of those assertions.  After all, your investigation will only involve the actions of the Verizon, specifically whether it illegally cooperated to share information with the NSA.  Director McConnell has confirmed that cooperation and hence your investigation can do no more harm that his interview.  Further, the state secrets privilege only applies to secret government activities and programs.  By granting this interview, Director McConnell has lifted whatever thin veil of official secrecy that may have existed and increased the likelihood that court cases – both those brought against regulators like you and by private parties – will go forward.

            We know that you are under an injunction not to move forward with you investigation until the federal courts decide how and to what extent you can proceed without treading on national security concerns.  We believe that McConnell’s interview gives your case a significant boost and casts doubt on the truthfulness of Verizon New England’s public statements.  But, more importantly, we worry that Congress will act before you can.  As Director McConnell noted in his interview, the Administration recently pushed to place full retroactive telecom immunity into the recently passed revisions to the FISA law and plans to renew those efforts this Fall.

Please contact Maine’s Senate and Congressional delegations and let them know that no immunization provision should go forward until you have the opportunity to conduct a full and fair investigation – one aimed at learning the full extent of telecom spying and the damage to the privacy of Mainers and all Americans.

                                                                       
                                                                        Very truly yours,

Zachary L. Heiden,                                                                 John M.R. Paterson,
Legal Director                                                                         MCLU Cooperating Counsel
Maine Civil Liberties Union Foundation                                Bernstein Shur

CC:      MPUC Commissioner Sharon M. Reishus
            MPUC Commissioner Vendean Vafiades
            Attorney General Steven Rowe
            AAG Linda Conti
            AAG Christopher Taub
            Donald Boecke, Esq.