New Frontiers In Legal Defense

3 comments May 7th, 2007at 10:36pm Posted by Eli

Oh, this is brilliant:

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.”

Wow. I’m no lawyer, but I’m pretty sure that this defense would essentially render the concept of privacy or confidentiality meaningless, at least where releasing information to the government is concerned.

(Cross-posted at Greatscat!)

Entry Filed under: Bush,Corruption/Cronyism,Republicans,Technology


  • 1. » Blog Ar&hellip  |  May 8th, 2007 at 7:36 am

    […] Neither the irony nor the extraordinary width of this claim has been lost on the blogosphere (see eg Consumerist, Discoverion, Dvorak, Kizo, life the univese and …, Multi Medium, Sivacracy, Spenser Irving). Indeed, I must – grudgingly – salute Verizon’s lawyers for their creativity, I suppose, but at first blush this strikes me as a most self-serving, laboured and implausible free speech argument. It would be laughable if it weren’t so serious; I imagine that makes it asburd – nay, absurdist – in the strictest senses of those words. However, let us take the argument seriously just for a moment. Let us grant their premise that disclosure of this sort is speech potentially covered by the First Amendment, or by similar provisions worldwide (such as Article 40.6.1(i) to the Irish Constitution, or Article 10 of the European Convention on Human Rights). Let us also leave aside that if there were no statutory compulsion to make such a disclosure, then there would no legal impediment to the contracts between the phone companies and their customers requiring the companies to maintain the confidentiality of the customers’ records, traffic data, and so on. Let us focus instead on the merits of the argument that disclosure of customer data is protected political speech, and that restrctions upon such disclosure are therefore unconstitutional infringements of freedom of expression. […]

  • 2. LJ/Aquaria  |  May 8th, 2007 at 8:57 am

    Uh… Maybe they need to talk to the American Library Association about what constitutes the exercise of free speech in regard to customer records/accounts. I think they have a rather different idea of how this all works.

    I don’t think many courts will look favorably on handing over data pell-mell to the government, without a warrant. Even the hardcore, “everyone’s guilty” judges would expect a warrant based on just cause, for a specific person/organization, for a specific suspected crime. I’ve not known too many who favored fishing expedition warrants. Not even the hardest core judges in the depths of Mississippi and East Texas cottoned to that idea.

    IANAL, but it seems like Verizon is on very, very thin legal ice here.

  • 3. Eli  |  May 8th, 2007 at 9:19 am

    Verizon would have been better off fighting a court battle over why they *refused* to hand over the info.

    Too much misguided patriotism, I suppose.

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