By John Holland
South Florida Sun-Sentinel
Posted June 28 2006
HOLLYWOOD -- She's a lifelong Republican, a proud conservative who rails against big government and doesn't have time for whiny liberalism. Now she's siding with the ACLU.
Strange times indeed, Theresa Fortnash says.
The Hollywood woman has filed a lawsuit in Miami seeking to stop the government from gathering records on virtually every telephone call made within the United States. She wants a federal judge to block AT&T from handing phone logs to the federal government, even though President Bush says the program is critical to national security.
"I know people are going to say I'm hurting our country, and that's why I thought a long, long time before doing this,'' said Fortnash, a computer database designer and mother of a 10-year-old daughter. "But I love my country, and this program goes against everything our country is about and everything my party has been about."
At the heart of Fortnash's lawsuit is the National Security Agency's attempt to build a giant database of telephone calls made by Americans, hoping to find patterns that will root out terrorists. Fortnash is the first to file suit in Florida, her lawyer said, joining a list of plaintiffs around the country, including the American Civil Liberties Union, who say phone companies are illegally sharing the information with the federal government.
The lawsuits have broad implications not only for consumers, but for the surveillance program federal officials call a linchpin of national security. The Justice Department has already filed motions hoping to quash similar actions in San Francisco, Detroit and New Jersey, and is expected to weigh in on Fortnash's lawsuit.
The Bush Administration asserted the president has broad authority to "prevent another catastrophic terrorist attack in the United States,'' according to court papers filed June 14 in New Jersey. If telephone companies even confirm or deny the program exists, there would be "exceptionally grave harm to national security,'' according to papers filed by the government.
A&T hasn't yet responded to Fortnash's lawsuit, but released a statement saying it didn't do anything wrong.
"The fact is, AT&T does not give customer information to law enforcement authorities or government agencies without legal authorization,'' the statement said. "We have an obligation to assist law enforcement and other government agencies responsible for protecting the public welfare, whether it be an individual or the security interests of the entire nation.''
From the time details of the program emerged in The New York Times last year and USA Today in May, critics have cited a potential for abuse. Fortnash said telephone logs can be used to track newspaper reporters and their sources, impede lawyers defending their clients and generally give government too much power over citizens.
Her lawsuit, which is seeking class action status, says the government and AT&T have ignored existing laws that allow for phone records to be turned over when a warrant or subpoena is issued.
"A government that doesn't abide by its own laws is a government that's out of control,'' said Fortnash's attorney John Gillespie, of the law firm Broad and Cassel. He also dismissed Administration claims that in a time of war, presidents have historically had broad powers to protect the country's citizens.
"If you take that argument, that in a time of crisis the federal government can do what ever it wants, that's just outrageous,'' Gillespie said.
Federal lawyers disagree, and have increasingly cited national security as a reason to quash lawsuits or to stop the release of information, legal experts said. A concept called the "state secrets privilege" exempts the government and telephone companies from having to turn over any documents, Administration lawyers argued in court records.
The Bush Administration appears to be asserting the privilege more than any previous presidency, according to Kathleen Clark, a constitutional law professor at Washington University in St. Louis.
"The courts have been deferring to the Administration repeatedly when it comes to national security, but every time you exert a privilege like state secrets, it makes it harder for courts to get at the truth,'' said Clark. "The privilege is an important one, but it also can have the effect of immunizing a government if it should engage in unconstitutional or even illegal acts.''
Fortnash said she filed the suit because of that potential for abuse.
"I'm extremely passionate about this, because I work with data and build databases every day, so I know how much the federal government can do with a person's telephone information,'' Fortnash said. "I've been a Republican my whole life, and that's why I think it bothers me more than it would any liberal Democrat, because this goes against everything I've ever believed in."
John Holland can be reached at jholland @ sun-sentinel.com or at
954-385-7909.
http://www.sun-sentinel.com/business/custom/consumer/sfl-swiretap22jun28,0,3379579.story
Informant: Scott Munson
