“The telecommunications companies filed a motion to dismiss our complaints. This would mean no answers to any of the questions raised by our complaint. The Nebraska Public Service Commission held a hearing on October 3, 2006 , so the attorneys could argue about whether dismissing the complaints was appropriate. It was an interesting example of David versus Goliath: the phone companies sent EIGHT attorneys to argue, while ACLU Nebraska was represented by one attorney, Legal Director Amy Miller .
The Commissioners had hard questions for both sides. Commissioner Frank Landis challenged the phone companies' attempt to assert legal defenses such as governmental immunity and the Secrets Privilege (a legal concept that allows the government to shield national security issues from the public). Since those legal arguments are available to the government—not private companies—Landis pointed out “It sounds to me like you are arguing for the federal government's position as opposed to a phone company's position here.” Commissioner Anne Boyle also tried to find out whether the executive branch attempted to intimidate the phone companies into cooperating with the spying program. One phone company attorney claimed he couldn't answer any questions at all because the company is restricted from doing so by the federal government. Boyle asked, “The restrictions that you are mentioning, did they also include a restriction that you may not even answer a question as to whether or not your company was bullied or told that if you do not cooperate that you may not get any more government contracts or that you were un-American?”
There were some hard questions for the ACLU, too. We urged the Commissioners to order the phone companies to at least answer whether or not they participated in the spying program. Commissioner Landis questioned Miller about how even that single questions might threaten security: “Isn't that one of the reasons for the State Secrets Privilege? You start with a little bit of information, a little more information, and a little more information, and the picture becomes more clear about what activities are going on and how it is operating. Then at some point, that becomes a disclosure to a potential entity.” Miller urged the Commission to follow the lead of other states and either ask limited questions of the phone companies or at least keep the complaint open without dismissal in case further information became public.
Since this hearing was to decide if there will be further proceedings in the complaint, it is too early now to know what will happen next until the Commission reaches a decision on the telephone companies' motion to dismiss.
LEGAL DOCUMENTS
> Letterto the Public Utilities Commission (05/24/2006)
PRESS RELEASES
> ACLU Launches Nationwide Action Against NSA Snooping on Americans’ Phone Calls (05/24/2006)