Verizon says phone record disclosure is protected free speech

[Joshua Tinnin]

http://arstechnica.com/news.ars/post/20070507-verizon-says-phone-record-disclosure-is-protected-free-speech.html

Verizon says phone record disclosure is protected free speech

By Nate Anderson | Published: May 07, 2007 - 01:48PM CT

Verizon is one of the phone companies currently being sued over its
alleged disclosure of customer phone records to the NSA. In a response
to the court last week, the company asked for the entire consolidated
case against it to be thrown out - on free speech grounds.

The response also alleges that the case should be thrown out because
even looking into the issue could violate state secrets, of course, but
a much longer section of the response tries to make the case that
Verizon has a First Amendment right to "petition" the government. "Based
on plaintiffs' own allegations, defendants' right to communicate such
information to the government is fully protected by the Free Speech and
Petition Clauses of the First Amendment," argue Verizon's lawyers.

Essentially, the argument is that turning over truthful information to
the government is free speech, and the EFF and ACLU can't do anything
about it. In fact, Verizon basically argues that the entire lawsuit is a
giant SLAPP (Strategic Lawsuit Against Public Participation) suit, and
that the case is an attempt to deter the company from exercising its
First Amendment right to turn over customer calling information to
government security services.

"Communicating facts to the government is protected petitioning
activity," says the response, even when the communication of those facts
would normally be illegal or would violate a company's owner promises to
its customers. Verizon argues that, if the EFF and other groups have
concerns about customer call records, the only proper remedy "is to
impose restrictions on the government, not on the speaker's right to
communicate."

With all of the phone company cases consolidated into one master case,
Verizon is hoping to have the case thrown out on free-speech grounds,
putting an end to its legal troubles over the issue. Should it fail, the
Bush administration is already preparing to ask Congress for retroactive
immunity for all telecommunications companies that assisted the
government after September 11, 2001. The government is also fighting
hard in court on behalf of the phone companies, filing repeated briefs
which claim that "state secrets" trump even the legality of the alleged
security programs.


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