THE BUSH ADMINISTRATION has spent much of the last few weeks trying to explain that to protect American democracy, it must sometimes spy on American citizens. Now the debate over its warrantless domestic spying program has reached out to touch one of the iconic names of American capitalism: Ma Bell.
The Electronic Frontier Foundation, an advocacy group for civil liberties in cyberspace, sued AT&T last week, alleging that the company violated its duty to keep phone records and conversations private. The suit asserts that AT&T not only allowed the National Security Agency to intercept phone calls without a warrant as part of its program to monitor the calls of U.S. residents with suspected ties to terrorists overseas, but it also enabled government agents to sift through the company's vast database of calling records in search of suspicious activity.
The lawsuit takes an indirect route to the foundation's ultimate goal, which is to force investigators to get a court's approval before spying on U.S. residents. At Senate hearings on the NSA program, which begin Monday, members of the Judiciary Committee may want to borrow from the foundation's strategy and see what they can learn not just from government officials but from telecommunications executives, who cannot hide behind executive privilege.
Ma Bell is certainly an inviting target. Outside of the NSA, no one knows more about the domestic surveillance program than the phone companies, the largest of which is AT&T. And the Bush administration has been extremely tight-lipped about the program's details. As a result, it is impossible to judge whether the program has focused exclusively on people chatting with Al Qaeda, as President Bush likes to say, or a much larger group of Americans who just happen to make or receive international calls.
AT&T, which isn't commenting on the suit, may have felt it had no choice but to comply with the NSA's requests. Federal law requires telephone companies to cooperate with law enforcement demands if they are supported by a court order or, in emergencies, certification from the U.S. attorney general that no court order is necessary. The surveillance program was almost certainly backed by just such a certification, and that could stop the lawsuit in its tracks.
