Isle lawmakers in dark over domestic spying

Two House panels try to determine the NSA program's scope

While lawsuits over the legality of the Bush administration's domestic spying program are pending at the federal level, state lawmakers are trying to determine if anything more can be done locally to ensure the privacy rights of Hawaii consumers.

Lawmakers first want to know whether local companies were contacted by the National Security Agency and what kind of information, if any, they provided.

Two House panels attempted to get answers at a legislative briefing yesterday but were unable to question federal officials and phone companies, neither of whom showed up.

Meanwhile, the American Civil Liberties Union of Hawaii filed a formal request yesterday with the Public Utilities Commission calling for a thorough investigation of all companies that provide telecommunication service in Hawaii, including cable phone service providers. The commission said last month it would request information on carriers' privacy policies and their contact with the National Security Administration and report back to the Legislature.

The inquiries come after national media reports in May that several telephone companies had provided the NSA with customers' phone records.

"The unfortunate thing is because there's such a lack of information, I think it creates even more confusion, or more questions, about if there was certain information sought," said House Judiciary Chairwoman Sylvia Luke. "At this point in time we don't know."

U.S. Attorney Edward Kubo's office sent a letter to lawmakers saying Kubo does not have access to information necessary to discuss the topic and furthermore "has no authority to represent the United States on this subject." Attorney General Mark Bennett said he suspected Kubo's absence was on instructions from the U.S Justice Department.

Hawaiian Telcom previously stated the NSA never requested information, but company officials declined to attend yesterday's briefing, citing a lawsuit filed last month alleging violations of privacy stemming from the surveillance program. In a letter, the company said it cannot publicly discuss matters related to pending litigation.

Officials from other providers, including Cingular and Sprint Nextel, also did not to attend, instead sending letters stating that while they protect their customers' privacy, they also comply with all state and federal laws.

Luke (D, Pacific Heights-Punchbowl) said lawmakers would try to work with the companies to try and get more information before deciding whether to follow the lead of New Jersey, which subpoenaed phone companies to force them to release such information. The U.S. Justice Department then sued, saying the release of such information could compromise national security.

While that matter is pending, Bennett said he was unlikely to pursue similar action in Hawaii because he feels the federal government will win the case.

"I would not want to do something that I believe is illegal," Bennett said, citing the "supremacy" clause in the U.S. Constitution that says a state cannot place regulations on the federal government.

"I'm going to wait and see how that litigation goes," he added.

Jon Van Dyke, a constitutional law professor at the University of Hawaii, disagreed, noting that the state Constitution and previous case law grant Hawaii citizens a higher level of privacy.

If a phone company operating in Hawaii voluntarily turned over information -- as has been reported nationally -- it would be in violation of state law, Van Dyke said. It would be different if a company were ordered to turn over information.

"If they're asking the phone companies to violate state law, the phone companies should say no," Van Dyke said. "State law governs up until the point that companies are ordered to violate state law."

Both Bennett and Van Dyke said the secrecy with which the NSA has operated the program makes it hard to know what kind of request was made and whether the law was violated.

"We're all in the dark here," Van Dyke said.

Bennett noted the Legislature also has the authority to convene investigative hearings and issue subpoenas if it feels the executive branch is not doing enough.

House Consumer Protection Chairman Bob Herkes said he would be open to the idea, but it would have to wait until next year.

"It would be interesting if we did form an investigative committee with the powers of subpoena to see whether or not the federal government would step in and try to quash those subpoenas," said Herkes (D, Volcano-Kainaliu). "I'd be willing to take that chance, and I think it would be very informative if we did that."

Nationally, the American Civil Liberties Union is challenging the domestic spying program in federal court in Michigan but also has launched a national campaign calling on regulatory agencies to conduct their own investigations.

"We know the program exists, but we don't know to what extent it's been used at all or even if it has been used in Hawaii," said Kit Grant, the ACLU-Hawaii's director of outreach and development. "We're trying to at least find out the scope of what's going on."