Handing over customer records as protected speech?

verizon logo, via the verizon siteOn the day I learn (hat tip Media Law Prof Blog) that US not-for-profit NGO Freedom House has released its annual global Freedom of the Press Survey for 2007 (Ireland fares reasonably well – equal thirteenth in Europe, equal sixteenth worldwide – but we could do better), I also learn (hat tip madisonian.net) that Verizon have made an extraordinarily tendentious free speech argument in favour of disclosing customer records to the US security services. Ars technica reports:

Verizon is one of the phone companies currently being sued over its alleged disclosure of customer phone records to the NSA. In a response to the court last week, the company asked for the entire consolidated case against it to be thrown out—on free speech grounds. … [their] “right to communicate such information to the government is fully protected by the Free Speech and Petition Clauses of the First Amendment,” argue Verizon’s lawyers.

Essentially, the argument is that turning over truthful information to the government is free speech, and the EFF and ACLU can’t do anything about it. … “Communicating facts to the government is protected petitioning activity,” says the response, even when the communication of those facts would normally be illegal or would violate a company’s owner promises to its customers. Verizon argues that, if the EFF and other groups have concerns about customer call records, the only proper remedy “is to impose restrictions on the government, not on the speaker’s right to communicate.”

Neither the irony nor the extraordinary width of this claim has been lost on the blogosphere (see eg Consumerist, Discoverion, Dvorak, Kizo, life the univese and …, Multi Medium, Sivacracy, Spenser Irving, Threat Level (on Wired) (with pdfs of the parties’ arguments)). Indeed, I must – grudgingly – salute Verizon’s lawyers for their creativity, I suppose, but at first blush this strikes me as a most self-serving, laboured and implausible free speech argument. It would be laughable if it weren’t so serious; I imagine that makes it asburd – nay, absurdist – in the strictest senses of those words. However, let us take the argument seriously just for a moment. Let us grant their premise that disclosure of this sort is speech potentially covered by the First Amendment, or by similar provisions worldwide (such as Article 40.6.1(i) to the Irish Constitution, or Article 10 of the European Convention on Human Rights). Let us also leave aside that if there were no statutory compulsion to make such a disclosure, then there would no legal impediment to the contracts between the phone companies and their customers requiring the companies to maintain the confidentiality of the customers’ records, traffic data, and so on. Let us focus instead on the merits of the argument that disclosure of customer data is protected political speech, and that restrctions upon such disclosure are therefore unconstitutional infringements of freedom of expression.

In principle, when there is a restriction upon a right such as freedom of expression, the restriction must serve a good reason (variously called a ‘compelling state interest’, or ‘pressing social need’), and must survive review or scrutiny (the restriction must be ‘narrowly tailored’ to serve that compelling state interest; or ‘proportionate’ to that pressing social need). Courts in the US and elsewhere have accepted that that the maintenance of privacy or confidentiality can constitute such a compelling state interest or pressing social need; and the custumers’ privacy interests here are strong indeed. Hence, provided that any restriction upon speech is narrowly tailored to serve that interest or proporotionate to that need, even if it were an infringement upon freedom of expression, it would be justified. It is on this basis that doctrines like breah of confidence, or privacy torts, or statutory obligations upon data processors to maintain the security of their data (such as the not-very-onerous ones at issue in this case), can be sustained.

It srikes me that rebutting Verizon on this kind of basis is an easy argument for EFF and the ACLU to make. The point, I suppose, is not that Verizon necessarily expect this argument to succeed (they have national security arguments that are much stronger), merely that it is a good short term tactical skirmish to fight to string out the bigger battles (like national security) in the case itself for as long as possible.