The ACLU of Colorado Is One of Twenty State Affiliates Urging Local Officials to Investigate Phone Companies’ Cooperation with Spy Agency; FCC Action Also Sought.

Responding to reports that phone companies are enabling illegal government spying by turning over private details about Americans’ telephone calls to the National Security Agency, the American Civil Liberties Union today sent a letter to the Federal Communications Commission demanding an investigation.

In addition, the ACLU of Colorado and affiliates in nineteen other states today filed complaints with Public Utility Commissions or sent letters to state Attorneys General and other officials demanding investigations into whether local telecommunications companies allowed the NSA to spy on their customers.

“It’s time for this illegal invasion of privacy, that could affect everyone in this country, to be unveiled,” said Cathy Hazouri, Executive Director of the ACLU of Colorado, which today called upon the Colorado Public Utilities Commission and the Colorado Attorney General to immediately begin an investigation into these activities. “We do not seek to obstruct legitimate law enforcement activities, but we are determined to stand up for the fundamental privacy and due process rights of people whose telephone records have been divulged without a warrant, notice or consent.”

The ACLU today also sent a letter to the Federal Communications Commission urging the agency to reconsider its refusal to investigate reports that at least three major telecommunications companies -- AT&T, BellSouth and Verizon -- cooperated with the NSA in an effort to collect calling information and call patterns on every American.

In its letter, the ACLU refuted the agency’s assertion – made public late yesterday – that the classified nature of NSA activities render it “unable” to investigate potential wrongdoing. The ACLU noted that the government is publicly defending the program, so there is no way that all the details about it are “state secrets” or involve classified information. The letter also pointed out that the government has a recent history of overclassifying information and conveniently claiming that any evidence of embarrassing or illegal actions are “state secrets.”

In complaints sent to state utilities commissions and other officials around the country, the ACLU is calling for investigations into the unlawful sharing of billions of consumers’ call records with the NSA. If the sharing is found to be in violation of state law, the ACLU is urging that officials issue “cease-and-desist” orders to the telecommunications companies in their states.

The Colorado Public Utilities Commission has jurisdiction over hundreds of telecommunications companies operating in Colorado and has the duty to enforce applicable state laws and regulations meant to protect the privacy rights and the private phone records of Colorado telephone subscribers. The Colorado Attorney General may initiate investigations and legal proceedings at the request of the Colorado Public Utilities Commission, and also enforces the Colorado Consumer Protection laws, which may have been violated when the telephone companies disclosed Coloradans’ phone records in contravention of their own privacy policies and agreements with consumers.

“These recent reports suggest that the federal government’s gathering of Americans’ private information may be much broader and more intrusive that originally disclosed,” stated ACLU of Colorado attorney Taylor Pendergrass. “An immediate investigation by the public entities that Coloradans have entrusted with protecting their privacy rights is necessary in order to get clear answers about the extent of this activity, and to halt and prosecute any violations of Colorado law.”

In addition to the ACLU of Colroado, actions were filed today by ACLU affiliates in Arizona, Connecticut, Delaware, Florida, Iowa, Kansas, Massachusetts, Missouri, Nevada, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia and Washington. Other ACLU affiliates are expected to file additional letters and complaints in the coming weeks.

“We cannot sit by while the government and the phone companies collude in this massive, illegal and fundamentally un-American invasion of our privacy,” said ACLU Executive Director Anthony D. Romero. “And unfortunately, we cannot wait for Congress to act.

The ACLU is mobilizing its members and supporters nationwide to demand investigations into this shocking breach of trust. And we are asking the FCC to use its authority to uncover the facts about how far the president's illegal spying has gone. The American people want answers.”

As part of its nationwide campaign, the ACLU today is running full-page advertisements in The New York Times and half a dozen major daily newspapers, with the headline “If You’ve Used a Telephone in the Last Five Years, Read This.” The advertisement provides a link to www.aclu.org/dontspy, where individuals can add their names to the public record in the ACLU’s complaints with Public Utility Commissions and send e-mails to the FCC urging that it investigate the matter.

“We are seeking to create the perfect storm to end illegal NSA spying,” said Barry Steinhardt, director of the ACLU’s Technology and Liberty Program.

When the NSA spying program was initially uncovered last December, the ACLU was one of the first organizations to bring a legal challenge, acting on behalf of a prominent and politically diverse group of journalists, scholars and lawyers. That challenge will be heard before Judge Anna Diggs Taylor in Detroit on Monday, June 12; it will be the first-ever hearing on the legality of NSA spying since the program was initially disclosed. More information on the case is online at www.aclu.org/nsaspying.

The ACLU’s FCC letter, the affiliate letters, today’s full-page advertisement and other background is online at www.aclu.org/dontspy.

A spokesperson for the ACLU of Colorado announced today that it welcomes a decision of the Boulder Valley School District (“BVSD”) to limit searches of students’ cell phone text messages, an issue the ACLU raised in a letter made public in October, 2007. In that letter, the ACLU asserted that non-consensual searches of text messages violate a Colorado criminal statute designed to protect the privacy of telephone and electronic communications.

New guidelines state that before searching text messages, BVSD administrators must not only satisfy the minimum federal constitutional standard for conducting a search, but must also obtain the consent of the student or parent. The only exception is an emergency in which there is an imminent threat to public safety.

“I commend the Boulder Valley School District for making a decision that protects students’ privacy and addresses the concerns raised in the ACLU’s letter,” said Mark Silverstein, ACLU Legal Director. “Meetings with the school district’s attorneys and ACLU representatives have been cordial and very productive.”

The Colorado statute makes it a crime to read, copy, or record a telephone or electronic communication without the consent of the sender or receiver. The ACLU’s October letter asserted that administrators at Monarch High School in Louisville had been violating the statute by seizing students cell phones; reading the text messages; transcribing messages administrators regarded as incriminating; and placing some transcriptions in students’ permanent files.

Silverstein noted that the BVSD attorneys do not agree that the Colorado statute applies to the cell phone searches criticized in the ACLU’s letter. Nevertheless, he said, by ensuring that administrators will now obtain consent before conducting a search, the potential conflict with the statute is largely resolved.

Silverstein said that BVSD also will add a sentence to its “Student Rights and Responsibilities Guide” that says: “Except in cases of emergency, a cell phone or other electronic communication device will not be searched without the consent of either the student or parent.”

In addition, administrators will fill out a one-page pre-printed checklist when a cell phone is searched. “The checklist functions as a written reminder to administrators of the minimum standards that must be met before searching a student’s cell phone,” Silverstein said. “It also reminds administrators that they can consult with the BVSD’s legal counsel in close cases.”

“Students’ use of newer electronic devices pose a potential challenge for school administrators who must enforce school rules and ensure students’ safety while also respecting their right of privacy,” Silverstein said. “The new guidelines BVSD has adopted represent a substantial step toward reaching an appropriate balance. I have nothing but praise for BVSD’s willingness to discuss the ACLU’s concerns and to make these changes.”

In addition to Silverstein, ACLU attorneys who met with BVSD attorneys included Taylor Pendergrass, ACLU Staff Attorney, and ACLU Cooperating Attorney Michael Rollin. 

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Administrators at Monarch High School are committing felonies under Colorado law and violating students’ privacy by seizing students’ cell phones, reading their text messages, and making transcriptions to place in students’ permanent files, according to a letter sent today by the ACLU of Colorado to the Boulder Valley School District Board of Education.

The ACLU’s letter calls on the Board of Education to put a stop to the practice at Monarch High School. 

“The educators at Monarch High School need some education themselves about the law and students’ rights,” said Mark Silverstein, ACLU Legal Director. “They have reportedly told parents that their children have no rights of privacy at school, and they have declared that they can search any cell phones and read any text messages they please.”

“Monarch administrators are wrong,” Silverstein continued. “Students have legally- protected rights of privacy, and the actions of Monarch administrators are violating those rights.”

According to the ACLU’s letter, the searching and transcribing of students’ text messages violates a Colorado statute that was enacted to protect the privacy of telephone and electronic communications. That statute makes it a felony to read, copy, or record a telephone or electronic communication without the consent of the sender or receiver. The letter also explains that searches of cell phones at Monarch High School also violate state and federal constitutional provisions that forbid unreasonable searches and seizures.

The ACLU said it learned of the actions of Monarch administrators in interviews with numerous parents and students who complained about a series of cell phone searches at the end of the last school year. According to the letter, the searches began when a student accused of smoking cigarettes was sent to an administrator’s office. After a search of the student’s pockets and backpack turned up nothing, the administrator searched the student’s cell phone. He then interrogated the student about text messages the administrator characterized as “incriminating.” With names of other students obtained from the student’s text messages, administrators called in additional students, questioned them, and also searched their cell phones. With names obtained in this second wave of questioning administrators then called in a third round of students and questioned them. Transcripts of cell phone messages were placed in the disciplinary files of multiple students, the letter says.

“The law provides a lot of leeway for administrators to investigate suspected violations of school rules,” Silverstein said. “When administrators have reasonable grounds to suspect that a search will turn up evidence, school principals can search a student’s backpack and can even insist that a student empty his or her pockets. But seizing a student’s cell phone and searching text messages is a much greater intrusion on privacy. Colorado statutes appropriately forbid the text message searches carried out by Monarch administrators, and they are also unreasonable searches under the standards of the state and federal constitutions.”

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