State Attorney General Mark Bennett said yesterday he would not follow New Jersey and subpoena telecommunications companies about whether they shared customer phone records with the National Security Agency.

However, two state House lawmakers said they may subpoena the information next session if the phone companies don't provide satisfactory answers.

New Jersey's attorney general had sent subpoenas to AT&T and other carriers in May to determine whether they violated state consumer protection laws by turning over phone records for NSA surveillance. But the U.S. Department of Justice sued last month to block the subpoenas, alleging it would put the carriers in the position of confirming or denying the existence of a national security operation.

Several lawsuits have been filed against telecommunications companies — including one in Hawai'i last month against Hawaiian Telcom and three other carriers — after USA Today reported that AT&T, Verizon and BellSouth contracted with the NSA to provide phone records for a government database.

Verizon and BellSouth denied the report and the newspaper later acknowledged it could not prove that either company had contracted with the NSA. AT&T has said that it followed the law but did not confirm or deny the newspaper's report.

Hawaiian Telcom said in May it had not been asked to provide data to the NSA since the company formed in May 2005 after its purchase from Verizon Hawaii.

At an informational briefing yesterday at the state Capitol, several House lawmakers asked Bennett why he has not demanded that carriers reveal whether they gave any phone records of Hawai'i customers to the NSA. The lawmakers argued that the state's constitutional right to privacy and Public Utilities Commission regulations protecting the confidentiality of phone records may have been violated by the surveillance.

But Bennett said the supremacy clause of the U.S. Constitution would allow the NSA to pre-empt state law as long as the agency was acting within the scope of its congressionally delegated authority. "I think we have to wait and see how this works through the federal courts," Bennett said.

Representatives of the U.S. attorney's office and telecommunications companies were invited to appear at the briefing but declined. An attorney for Hawaiian Telcom explained that the company had intended to appear but chose not to after the lawsuit was filed.

Jon Van Dyke, a University of Hawai'i-Manoa law professor, urged lawmakers to form an investigatory committee and subpoena the telecommunications companies. He said he believes it would be a violation of the state's right to privacy for the carriers to share phone records with the NSA without a warrant.

"We should all be standing up and asking questions," he said.

State Rep. Sylvia Luke, D-26th (Punchbowl, Pacific Heights, Nu'uanu Valley), the chairwoman of the House Judiciary Committee, and state Rep. Bob Herkes, D-5th (Ka'u, S. Kona), the chairman of the House Consumer Protection & Commerce Committee, said they would consider an investigation next session if the carriers still refuse to disclose the information.

Luke said it would be helpful if the NSA would clarify whether the phone records collected were for terrorism investigations. "We don't even know that much," she said.

Herkes said the disclosure is important to make sure civil liberties are not being threatened. "It's not something that we're just going to let go away," he said.

Reach Derrick DePledge at ddepledge@honoluluadvertiser.com.