Judge Rejects Administration Move to Stop States’ Telco Probes
A judge rejected a Bush administration effort to stop state investigations of phone carriers alleged to have given customer records to the National Security Agency. But U.S. District Court Judge Vaughn Walker in San Francisco left open chances of a different outcome after an appeals court rules in Hepting v. AT&T, the Electronic Frontier Foundation’s fight with the nation’s largest telco. The 9th U.S. Circuit Court of Appeals, also in San Francisco, is to hear oral argument in that case Aug. 15.
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Walker rejected two federal arguments but ducked ruling on the third before a decision in Hepting. The U.S. invoked the Constitution’s Supremacy Clause, the federal foreign- affairs power and state-secrets privilege in its effort to stop investigations by Maine, Vermont, Missouri, New Jersey and Connecticut. Walker ruled against the first two claims in his decision late Tuesday. The 9th Circuit will rule on the state secrets privilege’s application in Hepting, he said. The decision “clears out the underbrush,” leaving the main question to the Hepting court, said EFF attorney Kurt Opsahl.
The U.S. didn’t prove that state inquiries would violate the Supremacy Clause, Walker ruled. State orders would not directly regulate or discriminate against the government, he said. Federal law wouldn’t expressly preempt the state orders, the Foreign Intelligence Surveillance Act doesn’t bar state involvement in surveillance regulation and the orders will not necessarily conflict with federal law, Walker said. Presidential executive orders aimed at guarding national security material preempt state law only when necessary to implement federal law, not the case here, he said.
No state has acted to affect foreign affairs, Walker said. Instead, the state orders aim at “more mundane, local concerns such as utility regulation and privacy, traditional realms of state power,” he said. There’s no reason to think that inquiries into carriers stand to have a significant effect on relations with any other country, he said.
Missouri is “very pleased” with the decision and looks forward to the Aug. 15 circuit court hearing, said Peggy Whipple, an attorney for the Missouri Public Service Commission. Missouri is the only state that already filed against a carrier, in Clayton v. AT&T. The case is a subpoena enforcement action, and Walker could order the start of evidence discovery as soon as a ruling is made in Hepting, Whipple said.