The Washington Utilities and Transportation Commission (UTC) has asked phone companies to preserve call records that may have been illegally surrendered to a government spying program.
The order follows a request by the ACLU of Washington for an investigation of whether phone companies illegally surrendered these records to the National Security Agency, as part of a secret data-mining program. The program was described in newspaper stories earlier this year, but it has not been confirmed by the NSA or the president.
The UTC decided to postpone a full investigation of the phone companies until Congress or the courts can clarify legal questions about jurisdiction and national security. In the meantime, the UTC asked all phone companies to secure the customer records that may have been shared, and to identify all people in their companies with knowledge of the program.
“The state commission has recognized the importance of the right to privacy and the state’s role in protecting it,” said Doug Klunder, director of the Privacy Project of the ACLU of Washington. “By protecting these records, the UTC is ensuring that it can investigate these strong allegations once the legal questions are resolved.”
A May 11 article in USA Today reported that three phone companies – AT&T, BellSouth and Verizon – provided the NSA with the personal calling details of millions of customers, including telephone numbers called, time, date, and duration of calls. According to the article, the companies surrendered this information without customer consent or a warrant, court order, or other legal process.
Providing records of calls without a court order or customer consent would violate the federal Electronic Communications Privacy Act of 1986. The sharing of phone record information also appears to violate the companies’ own customer privacy agreements
Such customer information can also be easily matched with other databases to obtain the name and residence of each caller. This information would enable the government to track every phone call made by every Washington residential customer, including the identity of the people they have called and the length of each conversation.
Phone companies and the federal government have argued that the states cannot investigate the NSA program because it would compromise national security, also known as the “state secrets privilege.” They have refused to confirm or deny details of the program already published by media.
The ACLU believes the UTC does not need to examine any information relating to state secrets, but can instead limit itself to information about telephone company practices of information disclosure.
The ACLU has sought investigations in several states. In September, the Vermont Public Service Board decided to investigate the allegations of illegal records sharing, dismissing claims by Verizon that the state lacked jurisdiction under the state secrets privilege.