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John M.R. Paterson207 228-7212 direct

jpaterson@bernsteinshur.com

THIS IS A VIRTUAL DUPLICATE OF THE ORIGINAL HARDCOPY SUBMITTED

TO THE COMMISSION ON 6/30/06 IN ACCORDANCE

WITH ITS ELECTRONIC FILING INSTRUCTIONS.

August 4, 2006

Dennis Keschl, Acting Administrative Director

Maine Public Utilities CommissionState House Station 18

242 State StreetAugusta, ME 04333

Re: MAINE PUBLIC UTILITIES COMMISSION

Request for Commission Investigation into Whether Verizon is Cooperating in

Maine with the National Security Agencys Domestic Wiretapping ProgramDocket No. 2006-274

Dear Mr. Keschl:

I write on behalf of the Maine Civil Liberties Union in response to a letter I received

yesterday from Assistant Attorney General Peter Kreisler of the U.S. Department of Justice

expressing the view of the federal government that the Commission may not undertake theinvestigation requested by the Complaint in this matter. I also learned yesterday that this

matter is on the Commissions agenda for consideration on Monday August 7. In light ofthe time constraints I request that this matter be delivered to the Commission immediately.

Under the circumstances, time does not permit a complete response to the extensivecomments in or attachments to Mr. Kreislers letter. However, I did not want our silence tobe interpreted as an expression of agreement with his arguments.

At this point in the proceedings the Commission has been supplied with a multitude

of arguments and copies of recent relevant decisions and little purpose is served by restatingall that is set out in those filings. However, a few essential points must be made. At its

core, the argument of the federal government and Verizon is that federal law trumps the

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constitutional rights of those people in Maine who use Verizon for telecommunications

service. Relying on a number of federal laws, and a federal common law evidentiaryprivilege covering so-called state secrets, it is the clear position of Verizon and the

Department of Justice that they may do as they please with respect to the sharing of

telephone user records without regard to the limits of the U.S. Constitution.

We categorically reject that argument. Indeed, taken to its logical extension, the

federal government claims the power to do as it pleases and insulate itself from inquiry intoviolation of citizens rights merely by an invocation of national defense or security. That is

not and must not be the law.

Moreover, the opponents of this Complaint repeatedly overstate what is sought by it.

Nothing in the complaint seeks the disclosure of classified information or information that

would compromise national defense. Further, the contention by Verizon and the DOJ thatthe mere disclosure of the fact that Verizon had provided user records to the NSA or other

agency would compromise national defense, is belied by the thoughtful recitation of the

facts in the decision of the U.S. District Court in Hepting v. AT&T. In that case the Courtthoroughly reviewed the extensive public disclosures of the federal governmentstelecommunications record gathering. In view of those public statements, including

statements by the President, the continued assertion that a limited inquiry into the conduct

of Verizon would harm national security is simply ludicrous.

Further, the position of Verizon and the government tortures logic. If Verizon hasnot shared user records with the NSA or other agency, all it need do is say so. Nothing inany federal law prevents Verizon from saying We did not do it. Nothing in such denial,assuming it is true, would violate any law. If on the other hand, Verizon did engage in suchrecord sharing, all we seek are answers to the following questions:

(1) Did Verizon disclose customer telephone records to a governmental entity?(2) If it did disclose customer records, did it do so voluntarily and if so was it paid to

make the disclosures?(3) What was disclosed? (e.g. the names, telephone number and addresses of the caller

and the person called, the date, time of day, the length of the call or communication,the content of the communication, etc.)

(4) Did customers consent to the disclosures, and if so how was the consent obtained?(5) If customers did not consent, what legal document (e.g., warrant, court order,

certification or subpoena) was provided to the company to authorize disclosure andon what statute did it rely?

In seeking answers to these questions the Commission need not be concerned in any waywith any governmental practices. This complaint does not seek information as to the

content of information gathered, merely as to the fact of such activity, the type ofinformation disclosed and the purported legal basis for it, if any. All that is at issue are

Verizons practices. For purposes of both Maine law and the Electronic Communication

Privacy Act, it is entirely irrelevant to whom this information was disclosed by Verizon or

the content of any disclosed communications; all that is relevant is whether or not therecipient of records was a governmental entity, not which governmental entity received

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records, the purpose of the disclosure or the governments subsequent use of the records.

It is also notable that in its argument the government choses to simply ignore thefederal Electronic Communication Privacy Act, 18 U.S.C. 2702. It is as much the law of

the land, and is as binding on Verizon and the U.S. government as are those laws relied onby the Department of Justice. It is as much the supreme law of the land as the other lawscited by the DOJ.

We urge the Commission not to be swayed by threats of litigation from theDepartment of Justice. What would be a greater harm is if the Commission determined thatit would not undertake its duty to attempt to protect the statutorily and constitutionallyprotected rights of Maine citizens, simply because it feared a lawsuit. After all, if theCommission will not make this inquiry, who will? If in the end the government believes itmust initiate suit, then the courts will decide the matter.

Based on the foregoing, the MCLU strongly urges the Commission to undertake the

requested inquiry.

Very truly yours,

John M.R. Paterson

cc: All Parties per Commission Service ListAssistant Attorney General Peter D. KreislerDeputy Attorney General Linda Pistner