June 6, 2006

Arguments From EFF's Motion for Preliminary Injunction Against AT&T

I reported last week on the unsealing of documents related to the ongoing litigation against AT&T by the EFF relating to the NSA's warrantless domestic surveillaince program. I have just now had a chance to read EFF's motion for preliminary injunction, which brings out some new arguments relevant to my previous discussion of why this program is bad. I think that these two new (to me) arguments substantially refute my previous claim that the program is a violation of libertarian rights if and only if the companies' privacy policies represent to the customer that they will not voluntarily release the information.

The first argument is first stated by the EFF at p. 12, line 1 and further expanded upon beginning at p. 22. As they state briefly on p. 12, "AT&T is acting as an agent of the government, and is seizing and searching plaintiffs' communications for the government in violation of the Fourth Amendment." That AT&T is acting as an agent of the government for purposes of US law is argued for at length in the brief with much citation of Supreme Court precedents. I, of course, am primarily interested in the ramifications for libertarian principles of justice in the abstract. The idea that AT&T's actions might be, in some extended sense, actions of the government, does indeed bring new factors into an evaluations of the situation here as regards libertarian rights.

Previously, I had thought that this was analogous to the case of the government questioning witnesses, who voluntarily choose to give information. However, as the EFF points out, this is not actually an analogous case, because the government didn't just ask AT&T (and the other telecoms) for information they already had; they asked them to go out and gather information they didn't already have. This does indeed mean that AT&T is not merely revealing to the government information it already has, but actually spying on us on the government's behalf. This is, indeed, "unreasonable search and seizure" (or so it would seem).

Secondly, the EFF argued (see esp. 12.22-13.1) that statutes prohibit anyone from collecting this kind of information for purposes such as the present one. I argued before that if the government prohibited AT&T from contracting with its customers in such a way as to leave the possibility of such surveillance open, this would in fact violate the libertarian right to freedom of contract. However, I had a new thought while reading EFF's brief:

The government's purpose is to protect its citizens from force and fraud. A large part of this is the enforcement of contracts. This means that a critical function of government is to create a framework that allows for the creation of unambiguous and enforceable contracts. Might the government therefore have the just authority to define how contracts are to be written in order to ensure that they are enforceable and there is as little ambiguity as possible? It seems so. The language of the statute cited by the EFF has to do with the 'interception' of 'private communications.' However, if the contract between AT&T and the customer was such that AT&T explicitly said that it might intercept the communications and provide them to law enforcement, even in the absence of a court order, would this be sufficient to disqualify communications by AT&T's customers over AT&T's own network from being considered 'private'? It seems that it would. Under this construal, the statute is defining the default terms for contracts of those who provide information transport services: the communications are private unless specified otherwise. This would mean that AT&T almost certainly WAS under a contractual obligation to maintain the privacy of its customers' communications.

I think these arguments do a lot to contribute to the argument for the unlawfulness and injustice of the program, and I certainly hope that the EFF gets its injunction. I haven't had a chance to read AT&T's brief yet, but I hope to soon and will probably post some analysis of it as well.

Posted by Kenny at June 6, 2006 4:50 PM
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