[IP] more on Legal loophole emerges in NSA spy program -CNET News.com
Begin forwarded message:
From: Cindy Cohn <cindy@xxxxxxx>
Date: May 18, 2006 4:01:00 PM EDT
To: dave@xxxxxxxxxx
Cc: declan@xxxxxxxx, Kurt Opsahl <kurt@xxxxxxx>, Rebecca Jeschke
<rebecca@xxxxxxx>, Kevin Bankston <bankston@xxxxxxx>, Lee Tien
<tien@xxxxxxx>
Subject: Re: [IP] Legal loophole emerges in NSA spy program -CNET
News.com
Hi Dave,
As you might expect, we at EFF disagree strongly with the implication
of Declan's CNET News.com article that the existence of a
"certification" by the Attorney General authorizing surveillance by
the telcos is a magic bullet that will automatically kill the EFF
case against AT&T. The possible certifications are an issue in the
case, of course, but there are strong arguments on our side that
Declan failed to mention, likely because he didn't ask any of us.
Most prominently:
1) All of the certification provisions are strictly time-delimited.
None of the possibly applicable provisions allow surveillance longer
than a few days before the DOJ has to go to the FISA court for
authorization; and
2) All of the certification provisions envision a specific target of
the surveillance -- they do not provide authority for the sort of
wholesale ongoing turning over of customer communications and call
data that we assert is happening here.
We'll be providing thorough legal briefing to the Court about these
and other arguments between now and our next court hearing on June
23. The briefs will be up on the EFF website (http://www.eff.org/
legal/cases/att/) as soon as they are filed, and we suggest that
folks read them and decide for themselves.
And of course it's still not clear that there were any certifications
at all. The USA Today article seems to indicate that there are none
and AT&T and the government have both steadfastly refused to answer
that critical threshold question.
Cindy
On May 18, 2006, at 10:49 AM, David Farber wrote:
Begin forwarded message:
From: Suzanne Johnson <sjohnson@xxxxxxxxx>
Date: May 18, 2006 1:36:58 PM EDT
To: dave@xxxxxxxxxx
Subject: Fwd: Legal loophole emerges in NSA spy program -CNET News.com
Legal loophole emerges in NSA spy program
http://news.com.com/Legal+loophole+emerges+in+NSA+spy+program/
2100-1028_3-6073600.html
~~
Legal loophole emerges in NSA spy program
By Declan McCullagh
CNET News.com
Story last modified Thu May 18 05:27:58 PDT 2006
SAN FRANCISCO--An AT&T attorney indicated in federal court on
Wednesday that the Bush administration may have provided legal
authorization for the telecommunications company to open its
network to the National Security Agency.
Federal law may "authorize and in some cases require
telecommunications companies to furnish information" to the
executive branch, said Bradford Berenson, who was associate White
House counsel when President Bush authorized the NSA surveillance
program in late 2001 and is now a partner at the Sidley Austin law
firm in Washington, D.C.
Far from being complicit in an illegal spying scheme, Berenson
said, "AT&T is essentially an innocent bystander."
AT&T may be referring to an obscure section of federal law, 18
U.S.C. 2511, which permits a telecommunications company to provide
"information" and "facilities" to the federal government as long
as the attorney general authorizes it. The authorization must come
in the form of "certification in writing by...the Attorney General
of the United States that no warrant or court order is required by
law."
Information that is not yet public "would be exculpatory and would
show AT&T's conduct in the best possible light," Berenson said.
But he did not acknowledge any details about the company's alleged
participation in the NSA's surveillance program, which has ignited
an ongoing debate on Capitol Hill and led to this class-action
lawsuit being filed in January by the Electronic Frontier Foundation.
Some legal experts say that AT&T may be off the hook if former
Attorney General John Ashcroft, who was in office at the time the
NSA program began, provided a letter of certification. (Other
officials, including the deputy attorney general and state
attorneys general, also are authorized to write these letters.)
"If the certification exists, AT&T is in pretty good shape," said
Marc Rotenberg, executive director of the Electronic Privacy
Information Center and co-author of a book on information privacy
law.
EFF's lawsuit alleges that the telecommunications company let the
NSA engage in wholesale monitoring of Americans' communications in
violation of privacy laws. Confidential documents that EFF
unearthed during the course of the suit -- kept under seal and
still not public -- allege that AT&T gave the government full
access to its networks in a way that let millions of e-mail
messages, Web browsing sessions and phone calls be intercepted.
AT&T's ace in the hole?
If a letter of certification exists, AT&T could have an ace in the
hole. A second section of federal law says that a "good faith"
reliance on a letter of certification "is a complete defense to
any civil or criminal" lawsuit.
During the hearing Wednesday before U.S. District Judge Vaughn
Walker, Deputy Assistant Attorney General Carl Nichols also hinted
that such a letter exists. Nichols said that there are undisclosed
"facts that AT&T might want to present in its defense."
AT&T's legal defense?
An obscure section of federal law says that AT&T may have legally
participated in the NSA surveillance program -- if, that is, it
received a "certification" from the attorney general.
That section says: "Notwithstanding any other law, providers of
wire or electronic communication service... are authorized to
provide information, facilities, or technical assistance to
persons authorized by law to intercept wire, oral, or electronic
communications... if such provider... has been provided with... a
certification in writing by... the Attorney General of the United
States that no warrant or court order is required by law, that all
statutory requirements have been met, and that the specified
assistance is required, setting forth the period of time during
which the provision... is authorized... No provider of wire or
electronic communication... shall disclose the existence of any
interception or surveillance or the device used to accomplish the
interception or surveillance..."
But, Nichols added, those facts relate to classified information
that are "state secrets" and would jeopardize national security if
they were disclosed. A hearing on the Bush administration's
request to dismiss the case on national security grounds has been
scheduled for June 23.
For its part, AT&T has remained silent about the extent of its
alleged participation in the NSA surveillance scheme, which
initially was thought to apply only to international calls but now
may encompass records of domestic phone calls and more. Verizon
and BellSouth, for instance, took steps to distance themselves
from a USA Today report that said their call databases were opened
to the NSA. But AT&T wouldn't comment.
Marc Bien, a spokesman for AT&T, told CNET News.com on Wednesday:
"Without commenting on or confirming the existence of the program,
we can say that when the government asks for our help in
protecting national security, and the request is within the law,
we will provide that assistance."
The next tussle in this lawsuit is likely to center on how far the
"state secrets" concept can extend. Is AT&T able to divulge the
text of any certification letter, without saying exactly what
information it turned over as a result? Must the mere existence of
a certification letter remain secret?
Injecting additional complexity is 18 U.S.C. 2511's prohibition on
disclosure. It says that telecommunication companies may not
"disclose the existence of any interception or surveillance or the
device used to accomplish the interception or surveillance"--
except if required by law. Unlawful disclosures are subject to fines.
EFF claims that the existence of a letter of certification should
not be classified. Cindy Cohn, an EFF attorney, told the judge on
Wednesday that it is "not a state secret because the statute has a
whole process" governing it.
"If you have a certification, let's see it," EFF attorney Lee Tien
said in an interview after the hearing.
For his part, Berenson, the former attorney for President Bush
who's now representing AT&T, complained about allegations that his
client is violating the law. It's unfortunate that EFF "chose to
use words like 'criminal tendency' and 'crimes,'" Berenson said.
AT&T "is one of the great companies of the United States. To
attach those kinds of labels is reckless at best."
Berenson's biography says he worked for Bush on the "war on
terrorism" and the USA Patriot Act. Since leaving the White House,
Berenson has written letters to Congress (click here for PDF)
calling for renewal of the Patriot Act and has co-founded a group
called Citizens for the Common Defence that advocates a "robust"
view of presidential authority. It filed, for instance, an amicus
brief (click here for PDF) before the Supreme Court in the Hamdi
case arguing that a U.S. citizen could be detained indefinitely
without trial because of the war on terror.
Copyright ©1995-2006 CNET Networks, Inc.
~~
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