Gov't acknowledges discussing lawsuits with telecom company
Nick Juliano
Published: Tuesday February 12, 2008

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A US government attorney working for the Director of National Intelligence secretly discussed pending litigation with a telecommunications carrier, a top Intelligence official acknowledged this month. But much remains unknown about when the conversation took place or what advice the government attorney may have offered, as the Intelligence Director works to keep notes of the conversation classified.

In a filing released as part its ongoing lawsuit with a privacy watchdog, the government for the first time revealed the contents of a telephone message slip it previously withheld from a Freedom of Information Act response. A DNI administrative assistant took a message from a telecommunications company representative and gave the telco rep's name and number to a govenrment lawyer, who returned the phone call and took notes on the message slip, according to the filing.

The disclosure comes at the Senate is preparing for a final vote on a bill that would grant legal immunity to the telecommunications companies. Senate Democrats find themselves in precisely the situation they hoped to avoid in working to update a foreign surveillance law, and the push for immunity has created some deep divisions between the Senate and the House, as Roll Call reports.

The Electronic Frontier Foundation has filed a FOIA request for all documents concerning discussions or exchanges between Director of National Intelligence Michael McConnell or others in his office and telecommunications carriers regarding efforts to update the Foreign Intelligence Surveillance Act. Hundreds of pages of documents were released in November and December detailing McConnell's discussions with Congress.

The lawyer called to discuss "the various options that may be available to address the litigation facing the telecommunications carriers" and the two disussed "options such as court orders and legislation," such as the telecom-immunizing FISA update to be voted on Tuesday. The government argued that releasing the identity of the telecommunications company it talked to would be an unwarranted invasion of privacy and could aid terrorists seeking to subvert US surveillance methods.

"Confirmation by the ODNI that the US Government does or does not have a relationship with a particular telecommunications carrier for an intelligence activity would provide our adversaries with a road map, instructing them about which communications modes and personnel remain safe or are successfully defeating the US government's capabilities," wrote Ronald L. Burgess, Director of Intelligence Staff.

Wired's Ryan Singel notes the government has declared the document Top Secret.

"To highlight the fact it was not an official document, the government reveals that the attorney who wrote on the slip left it on his desk for several weeks and then just filed it in an 'unofficial' FISA folder," he writes. "It's unclear if that's official policy for handling Top Secret documents or not."

The government does not say when the phone call took place, although it is most likely sometime after February 2006, when USA Today reported that Sprint, MCI and AT&T cooperated with the National Security Agency's post-9/11 warrantless wiretapping program. EFF filed a class-action lawsuit against AT&T the next month; there are about 40 lawsuits pending against those companies alleging they violated laws protecting customers' privacy in cooperating with the government's program.

"A majority of international calls are handled by long-distance carriers AT&T, MCI and Sprint. All three own 'gateway' switches capable of routing calls to points around the globe," the paper reported. "AT&T was recently acquired by SBC Communications, which has since adopted the AT&T name as its corporate moniker. MCI, formerly known as WorldCom, was recently acquired by Verizon. Sprint recently merged with Nextel."

Details of the warrantless wiretapping program remain secret, and as the Wall Street Journal reported after the companies' cooperation was disclosed, even company CEO's may not have known the full details of how the government was accessing their customers' telephone calls, e-mails and faxes.

"Internally ... Verizon Communications Inc., which recently acquired MCI, and the former SBC, which recently acquired and took the name AT&T, have encountered a confusing situation," the paper reported. "Workers who hold security clearance at the acquired firms can't always legally talk about details of their work to workers who don't have such clearance at the new parent company, people familiar with the situation say."

The EFF is continuing to fight for the full message slip to be released, and it will argue its case against the government in federal court March 7, Singel reports.