employeeturnedwhistleblower Mark Klein, a 62yearold retired
telecommunications technician, was in Washington Wednesday to meet with members
of Congress to convince them that telecommunications companies shouldnt get
immunity for the part they played in helping the National Security Agency (NSA)
collect and record massive amounts of Americans Internet communications.
When Klein worked for AT&T in 2002, he said he received emails from higher
management advising technicians of a special visit from the NSA and that an NSA
agent was going to interview another technician for a special job. In January
2003, he toured AT&Ts Folsom Street facility in San Francisco, where a new
24by48foot secret room was being built adjacent to telecommunications
At the time, Klein was a fiber optics technician, and he said he became aware
that AT&Ts WorldNet Internet services optical circuits had been split so that
electronic voice and data traffic from AT&Ts customers could be copied and
diverted to the secret room, which was locked and controlled by the NSA.
My job required me to enable the physical connections between AT&T customers
Internet communications and the NSAs illegal, wholesale copying machine for
domestic emails, Internet phone conversations, Web surfing and all other
Internet traffic. I have firsthand knowledge of the clandestine collaboration
between one giant telecommunications company, AT&T, and the National Security
Agency to facilitate the most comprehensive illegal domestic spying program in
history, Klein stated.
Evidence for a Class Action Lawsuit
The Electronic Frontier Foundation (EFF) filed a class action lawsuit against
AT&T in January 2006, accusing the telecom giant of violating the law and the
privacy of its customers by collaborating with the NSA in its massive program to
wiretap and datamine Americans communications, actions which the EFF said are
illegal. On July 20, 2006, a federal judge denied the governments and AT&Ts
motions to dismiss the case, chiefly on the ground of the States Secrets
Privilege, allowing the lawsuit to go forward. On Aug. 15, the case was heard by
the Ninth Circuit Court of Appeals.
The EFF lawsuit arose from news reports in December 2005, which first revealed
that the NSA had been intercepting Americans phone calls and Internet
communications without any court oversight, which the EFF said violates privacy
safeguards established by Congress and the U.S. Constitution. This surveillance
program, purportedly authorized by President Bush as early as 2001, intercepts
and analyzes phone and Internet communications of millions of ordinary
Americans. EFF has complied and published supporting documents, reports and
court materials on its AT&T Class Action area on its Web site.
On behalf of a nationwide class of AT&T customers, EFF says its suing to stop
this illegal conduct and hold AT&T responsible for violating the law and the
fundamental freedoms of the American public.
The EFF scored a minor victory Tuesday when a federal judge ruled that AT&T must
either halt any routine destruction of documents or arrange the preservation of
The Plot Thickens
Meanwhile, the Justice Department has reportedly sought to block the lawsuit
and as many as 40 other, similar suits with telecoms around the country by
using the state secrets privilege, which would block the release of any
information that might endanger national security.
Last month, the Senate Intelligence Committee approved a bill that would reduce
the governments ability to eavesdrop on terrorism suspects and protect civil
liberties, but which also includes a clause that would grant the
telecommunications companies, including but not limited to AT&T, immunity from
lawsuits stemming from privacy violations with the NSA.
Sen. Leahy and the White House
Sen. Patrick Leahy, a Vermont Democrat and chairman of the Senate Judiciary
Committee, called out the immunity issue as a concern a week ago, both to the
privacy of Americans as well as a shield for the Bush Administration.
At the outset I should acknowledge the grave concern I have with one aspect of
S.2248. It seeks to grant immunity or, as Senator [Christopher] Dodd
(DConn.) has called it, amnesty for telecommunications carriers for their
warrantless surveillance activities from 2001 through this summer, which would
seem to be contrary to FISA (Federal Intelligence Surveillance Act) and in
violation of the privacy rights of Americans, Leahy noted.
I am considering carefully what we are learning from these materials, he
added. Congress should be careful not to provide an incentive for future
unlawful corporate activity by giving the impression that if corporations
violate the law and disregard the rights of Americans, they will be given an
afterthefact free pass. If Americans privacy is to mean anything, and if the
rule of law is to be respected, that would be the wrong result. A retroactive
grant of immunity or preemption of state regulators does more than let the
carriers off the hook. Immunity is designed to shield this administration from
any accountability for conducting surveillance outside the law. It could make it
impossible for Americans whose privacy has been violated illegally to seek
Rock and a Hard Place
Right or wrong, it is hard to imagine that the executives at any telecom were
pleased to see the NSA show up at their doorsteps.
My initial impression is that these companies are stuck. If they dont give the
government what it wants, the government comes after them. If they give the
government what it wants, then private parties comes after them, Jeff Kagan, a
telecommunications industry analyst, told the ECommerce Times. Either way,
they are exposed. I dont think theres a path for them to take thats good for
the shareholders or for the company.
The people running the telecoms, it is easy to imagine, would likely have had
some interest in helping protect Americans from terrorists, but at the same time
they also have an interest in protecting those same Americans civil liberties
not to mention their own public images. Those can be two competing thoughts
theres not a solution that would satisfy everyone, Kagan noted. Thats the
world we live in today whether we like it or not.