Citizens vs. spies

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A Bay Area man and a San Francisco nonprofit are at the center of an epic, ongoing battle over privacy rights involving all three branches of the United States government. The outcome may determine the lines between national security and personal liberties in the 21st century.

The story begins in December 2005, when the New York Times exposed the George W. Bush administration as having illegally eavesdropped on US residents without required court warrants. The next month a former AT&T technician in San Francisco came forward with information about how that company (and Verizon and MCI, it was later learned) was gathering Internet and phone data from its customers and illegally routing it to servers controlled by the National Security Agency.

Mark Klein saw that a splitter was diverting the normal information traffic of domestic customers to a secret room at the AT&T Folsom Street plant. He knew that NSA people were around the company’s buildings as early as 2002, and it didn’t take him long to figure out what was going on. "It was obviously some big government hush-hush thing," Klein told the Guardian in a phone interview.

Klein realized he was not in a position to do much at the time, so he "made a note and moved on," he said. He also came across company documents spelling out the technical details of the operation, which his "fortuitous knowledge" allowed him to understand and explain. Klein stowed them away and kept them when he retired in May 2004.

Klein contacted the Electronic Frontier Foundation, a privacy-rights group, in January 2006 and became a key witness in a class action lawsuit filed by the organization on behalf of AT&T customers. Hepting v. AT&T was the first of nearly 40 cases filed by citizens in Northern California against telecommunications companies and the government. In June 2006 a federal judge denied a motion to dismiss the case on the grounds of state-secrets privileges. The government and AT&T appealed the decision to the 9th Circuit Court in San Francisco.

On August 15, 2007, EFF lawyers offered their opening arguments to a three-judge panel, urging it to allow AT&T customers to continue to fight against illegal spying on their Internet and telephone communications. In transcripts from this session, Judge Michael Hawkins surmises the matter: "As I understand, in this case what the plaintiffs are saying is that AT&T has provided telecommunications information about its subscribers to the government without a warrant."

This action runs afoul of the Foreign Intelligence Surveillance Act of 1978, which established a special court to issue warrants for government surveillance and which set standards to prevent abuse, although the court has rarely refused to issue warrants, which could even be obtained retroactively for emergency situations.

The Bush administration has sought to revise FISA for the post–Sept. 11 world, and a major component of this overhaul would be immunity for telecommunication companies that have served as dragnet information collectors for years. Government and AT&T lawyers argued before the judges that the data collection was in the interest of national security and that the industry giants were acting in good faith, so they cannot be held liable.

Reiterating this position, company spokesperson Walt Sharp wrote in an e-mail to the Guardian, "AT&T is fully committed to protecting our customers’ privacy. We do not comment on matters of national security."

A decision in the case is still pending, and according to Rebecca Jeschke, media relations coordinator for the EFF, "We have no idea when they’ll have a ruling for us. Delays for a year are not uncommon."

Meanwhile, Congress is debating whether to essentially legalize the actions of the Bush administration and the companies and is hashing out two conflicting piece of legislation. The Senate voted Feb. 12 to reject an effort to strip the immunity provisions from the FISA Amendments Act, opting to protect the companies from legal scrutiny.

The House of Representatives has its own surveillance measure, which would loosen up some FISA restrictions but not include the immunity provision. That legislation, House Resolution 3773, was passed in November 2007 by a 227–189 vote. The bills now head to a Senate-House conference committee, which will work out the discrepancies, if that’s possible. As Jeschke explained, "The two bills will become one law or no law."

Bush has repeatedly said he will veto any bill that does not include immunity, while hawks in Congress say national security will be compromised if the government has to gather information without corporate assistance. In a Feb. 15 press release, Speaker Nancy Pelosi rejected this assertion: "[The president] knows our intelligence agencies will be able to do all the wiretapping they need to do to protect the nation…. [He] should now work in a cooperative way with Congress to pass a strong FISA modernization bill that protects our nation’s security and the Constitution."

Pelosi spokesperson Drew Hammill told the Guardian, "Her position is that we have to make sure that this is consistent with the Constitution…. She is not in favor of immunity."

HR 3773 is "far from perfect," according to the EFF Web site, but it "provides far more congressional and judicial oversight of the Executive Branch’s domestic spying than the FAA."

Klein, the former AT&T technician, whistle-blower, and key witness, also became an unpaid lobbyist for EFF when he traveled to Washington DC in November 2006. He described the experience as "very tiring, exhausting," and said that over the four days, "we were much more successful in media coverage, but in terms of Congress, it didn’t do very much."

He concluded our interview with some foreboding words based on his experience. "This is more than about another bill," he said. "This is about fundamental constitutional issues, and many people are unaware."