Recommendations of the Lead Complainant

Maine PUC Docket No. 2006-274

The June 23 Procedural Order (1) expressed concern about “whether

certain federal statutes and/or the so-called ‘state secrets privilege’ will prevent…

obtaining relevant information in the course of a Commission investigation” and

(2) stated the Commission seeks recommendations from Verizon, and invited

recommendations from the OPA, the MCLU, and the lead complainant, “about

the process the Commission should take to resolve whether federal law precludes

an investigation into” whether the complaint implicates Section 7 of Chapter 290,

§7101-A(1), and §7101-A(2).

Recommendations

As lead complainant, and on behalf of the other 21 original complainants, I

recommend:

1. That the Commission follow the process the Vermont Commission and

Department of Public Service have taken in opening the adjudicatory

investigation into the issues raised by the ACLU of Vermont’s complaint and

the Department’s petition, which are the same as the issues the

complainants raised in this case.1

2. That the Commission review and give consideration to the many suggestions

for dealing with federal secrecy statutes and NSA classification and DOJ
1
The Commission’s order, in Vermont PSB Docket N0. 7192, which opened the investigation, is attached.
Recommendations of the Lead Complainant, Docket No. 2006-274

State Secrets issues, and for the Commission to take action in this case, that

are contained in the comments on Verizon’s response to the complaint and

in the letters opposing Verizon’s request to rebut them.

3. That, for the reasons stated in the comments on Verizon’s response to the

complaint, the concern about the possibility of the Justice Department

intervening and asserting the State Secrets privilege not be a factor in the

Commission’s consideration on whether to open an adjudicatory

investigation of the complainants’ privacy concerns in this case, or for that

matter in its conduct of the investigation. As the MCLU’s comments pointed

out, because the State Secrets privilege is an evidentiary privilege and not a

grant of immunity, the privilege is one that can apply to specific evidence,

but not serve to block all inquiry or to completely shut down the case.

Furthermore, as the lead complainant’s comments mentioned, central facts

that bear on this case are not secrets: the president, his attorney general, the

chairmen of the Senate’s Intelligence and Judiciary Committees have each

publicly acknowledged - and defended - the collection by the NSA of

telephone communication information on ordinary American citizens,

without warrants.

4. That the Commission give consideration to the fact that the only call and e-

mail records of Verizon’s customers in Maine that may be classified are

records already in NSA’s possession. Therefore Verizon’s responses to

questions about any other call and e-mail records cannot be classified.

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(Some responses to the data request served on Verizon by the Commissioner

of the Vermont Department of Public Service are good examples.) 2

5. That until the Commission opens an adjudicatory investigation in this case

it direct its staff to commence serving Verizon with data requests that ask at

least some of the questions in the “Highly Classified” section of the lead

complainant’s comments on Verizon’s response to the complaint.

6. That the Commission consider holding Verizon in contempt for failing to

obey the presiding officer’s May 15 procedural order, which stated: “The

Commission requests that Verizon address, in its response to the complaint,

the extent to which the actions alleged in the complaint and in the USA

Today article implicate the privacy rights of Maine telephone service

subscribers described by 35-A M.R.S.A. § 7101-A.” Verizon’s assertions that

it can neither confirm nor deny its involvement with NSA in Maine and that

the State Secrets privilege would trump §7101-A is not what the Commission

requested Verizon to address in its response, it does not even come close,

and the Commission should not accept it.

7. That the Commission open an adjudicatory investigation and assign an

Advocate Staff to assist in the investigation of the issues in this case, and

that the Advocate Staff include the members of the Commission’s telephone

2
The DPS data request and Verizon’s responses are attached to these recommendations.

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staff who have the most experience with and knowledge of Verizon’s

operations and local exchange and interoffice networks in Maine.

8. That the Commission retain consultants with established expertise in the

design, operation, and software of Verizon’s Lucent and Nortel host and

tandem switching machines in Maine, who will be necessary to assist the

Commission in determining if Verizon has provided NSA access to any of

those switches, especially to its Nortel DMS 200 tandem switch.

9. That, in addition the statues identified in the June 23 procedural order as

possibly being implicated by the complaint, the Commission consider

Verizon e-mail response #3 in the complaint, which states the company is

unaware of any statute that would prohibit it from giving a government

agency access to its switching machines, and consider whether 15 M.R.S.A.

§709-713 are implicated if the Commission finds Verizon has provided NSA

access to its switches in Maine.

10. That, if the Commission telephone staff’s caseloads are too large or

demanding to investigate the issues in the complaint, the Commission

consider hiring consultants and asking the Maine Attorney General to

intervene in this case.

11. That the Commission give due consideration to the number of persons on

the Service List for this case, approximately 30 so far, who have requested

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either complainant or interested person status; and to the 362 Maine

citizens on a list submitted by the MCLU, who indicated their concern about

NSA’s warrantless domestic wiretapping program; and to the hundreds and

possibly thousands of other Verizon customers in Maine who may be

similarly concerned about the privacy of their telephone calls and e-mails.

12. That the Commission give due consideration to the privacy concerns of the

original 22 complainants who, because Congress has been immobilized and

has failed to do its duty to investigate the telephone companies’ involvement

in NSA’s warrantless domestic wiretapping and data mining programs, have

turned to the Commission; and here they are: Paul Tyson, Kristen

Archambeault, and Jaye Gorham own and operate businesses in Maine;

Paul Sarvas is a member of the Dance Faculty of Bowdoin College; Lisa

Hicks is the artistic director of a dance troupe in Portland; Lawrence Dyer is

Principal, Louis Solebello is Vice Principal, and Richard McGuire, Pamela

O’Connell, and David Cowie are teachers, at Bath Middle School; John

Donavan is a guidance counselor at Sacopee Valley High School; Ethan

Strimling is executive director of Portland West Neighborhood Organization

and a member of the Maine Senate; Barbara Taylor, Esq., is a staff attorney

at the Immigrant Legal Advocacy Project in Portland; Christopher Branson,

Esq., is a partner of the Murray, Plumb & Murray law firm and the MCLU’s

vice president; Thomas Mundhenk is MCLU’s treasurer; Sally Dobres is a

past president and current member of the MCLU Board of Directors; and

Gwethalyn Phillips, Maureen Dea, Margaret Siegel, and Harold Noel are

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members of the MCLU Board of Directors; James Woodworth is a

homeowner and resident of Ellsworth; and Annie and James Cowie are

homeowners and residents of Portland.

Finally, I recommend the Commission consider - and to please take to heart

- that what NSA may be doing in Maine with Verizon’s help is different only in

form from a Maine sheriff breaking into a citizen’s home and searching for and

seizing whatever he wants to seize, and then telling the citizen she or he cannot

be told why he’s done it because that information is highly classified and a State

Secret.

Respectfully submitted,

James D. Cowie
Lead Complainant
32 North Street
Portland Maine 04101
June 30, 2006