The nation’s biggest telcos are working hard to make the lawsuits against them for passing customer call records and other info to the government as part of its program of warrantless wiretaps disappear. AT&T’s argument that it was just following government orders didn’t wash with a judge, and now Verizon is claiming that its passing of information to the government is protected by the First Amendment.

Yes, you read that correctly: it says the Electronic Communications Privacy Act is unconstitutional, and the information it passed to the government — in apparent violation of it, and to comply with the sort of warrantless surveillance the ECPA was designed to prevent — is constitutionally protected free speech. This seems tenuous at best, but it fits with Verizon’s MO. The company always tries to whitewash its customer data leaks by filing lawsuits and trying to shift the blame onto pretexters and information brokers, and making the problem appear to be solely these people’s activities, rather than its own inability to protect customer data.

Likewise in this case, it contends that it’s done nothing wrong, and that the ECPA makes the mistake of trying to prevent free speech, rather than putting restrictions on the government’s ability to ask for the information. Of course, those restrictions exist (in the form of having to get a warrant), but didn’t really work so well here. Verizon’s complicity seems pretty obvious and its free-speech claims look like little more than a hail-mary attempt to shirk liability for disclosing the customer information. That may not be necessary, though, if the Bush administration’s attempts to get Congress to pass a law giving the telcos immunity from these sorts of lawsuits are successful.

Protected by the first amendment? What!?