Because the federal government won't act, the states are taking the lead on global warming issues.

Here's another fascinating federalism question:  if the federal government won't do anything about the various depredations of the telcos, is there a role for the states? States have consumer protection laws and investigative powers.  And sometimes they're willing to take risks that the federal government won't.

I heard this evening that the ACLU of Connecticut, joining up with Connecticut AG Richard Blumenthal, convinced a federal court in California that the Connecticut state Public Utilities Commission had jurisdiction to investigate the NSA spying scandal. 

(Update:  story is here, order is here. Maine, Missouri, New Jersey, and Vermont were also involved.)

The case started more than a year ago, when the ACLU-CT filed a complaint with the state utilities commission, the DPUC, asking that the DPUC investigate AT&T and Verizon's reported disclosure of private calling information of Connecticut customers to the National Security Agency without court orders, warrants or subpoenas. 

The Connecticut DPUC denied motions by the telcos to dismiss the complaint, and said it wanted to go ahead.  (Not all state PUCs have been bold enough to act in this area, by the way.)  The case was consolidated with others in front of San Francisco District Court Judge Vaughn Walker. 

(He's the same judge who said earlier this year that AT&T couldn't credibly argue that investigating the NSA scandal would necessarily reveal "state secrets" that would harm national security.  That decision is on appeal before the Ninth Circuit.  You may remember that the Sixth Circuit recently held that plaintiffs complaining about unwarranted wiretapping by NSA didn't have standing - and couldn't, because of the State Secrets Doctrine.)

I understand that Judge Walker has now agreed with the Connecticut ACLU that the state utilities commission has jurisdiction to investigate.  They want to look into what the telcos who operate in Connecticut did with information about Connecticut customers.  So the standing question that tripped up the Sixth Circuit case won't be a problem.

But then there's still the State Secrets Doctrine.  How would that work here?  According to the Sixth Circuit, there are two ways the doctrine can be applied - (1) as an evidentiary privilege, dictating that if the proof needed for the defendant to defend himself is itself a secret, then the case may have to be dismissed, (2) as a justiciability matter - "If litigation would necessitate admission or disclosure of even the existence of [a state] secret, then the case is non-justiciable and must be dismissed on the pleadings."

Here, the Connecticut state utilities commission just wants answers to some questions:  Did AT&T/Verizon turn over customer data without a subpoena or other form of legal process?  The answer to that question can't possibly be a secret. 

This is big.  It's another route by which to get information before a judge about the relationship between the telcos and national security actors in this country.  The FCC isn't doing anything about CPNI, as far as I know (happy to be corrected), so the states feel they need to act.

Next step:  wouldn't it be great if the state AGs investigated collusion between the regional-duopoly telcos and cablecos in connection with the provision of high-speeed internet access?  What set of tacit agreements may have led to such an absence of competition?