A federal judge today denied motions by the U.S. government and AT&T Inc. to stop a lawsuit over alleged participation by the carrier in an illegal wiretapping program by the U.S. National Security Agency (NSA).
Judge Vaughn R. Walker of the U.S. District Court for the Northern District of California denied the government's motion for dismissal of the case or summary judgment on the basis that the case involved state secrets. He also denied AT&T's motion to have the case dismissed.
The civil liberties group Electronic Frontier Foundation sued AT&T in January on behalf of the carrier's customers, alleging it diverts traffic from its fiber-optic lines to the NSA as part of an illegal antiterrorist surveillance program. The suit, one of several in the works, followed press reports last year about several major carriers providing data for broad domestic spying initiatives.
The case still could be halted. In his decision, the judge allowed the parties to make an instant appeal to a higher court, a move that could lead to all or part of the case being stayed.
To deal with the issue of state secrets, Walker proposed naming an independent expert to decide whether certain disclosures might endanger national security. He asked for arguments from the parties on why an expert should not be appointed, as well as possible nominees. That expert would be someone with high-level clearances and intelligence experience, he said.
Attorneys for the plaintiffs praised Walker's decision.
"He rejected the government's bold attempt to sweep this entire case under the rug on day one," said Robert Fram, an attorney from Heller Ehrman LLP who is working with the EFF on the case. Attorneys from the EFF also praised the idea of an independent expert. Evidence should be looked at from a state secrets perspective one piece at a time, they said.
Too much information has already been disclosed to stop the case, Walker wrote in his decision. "The very subject matter of this action is hardly a secret," he wrote. Statements by the George Bush administration have disclosed the general outline of an antiterrorist surveillance program and AT&T has said it assists the government with classified matters, he said.
In addition, AT&T can't claim to be immune from lawsuits just because it is a carrier following government orders, he said, writing that because similar "dragnet" surveillance orders have been ruled illegal in the past, "AT&T could not seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal."
The court might still decide that the need for secrecy could prevent EFF from gathering evidence or AT&T from defending itself, but it is too early to determine that, Walker said. Also, whether the surveillance was properly authorized is a matter for further litigation, he said.
The plaintiffs' attorneys said they can now start compiling evidence unless the case is stayed pending an appeal.
AT&T did not immediately respond to a request for comment.
Both plaintiffs and defendants will now turn their attention to filing a variety of briefs, which are due to the court on July 31. A management conference hearing on August 8 will include representatives from both sides and will settle issues such as the naming of independent experts.
Meanwhile, a hearing in Chicago next week might consolidate some or all of the related cases pending around the country. A multi-district litigation consolidation would combine several of the current wiretap-related lawsuits, speeding the process but concentrating the decisions in the hands of fewer judges.
According to Cindy Cohn, legal director for the EFF, consolidation might also combine newer cases with cases such as the EFF's, which has been in litigation since the beginning of the year. She notes that the EFF would prefer not to be consolidated with others, but that if consolidation were to occur that they would recommend that Judge Walker continue to hear the case.
It is believed that the federal government has requested a change of venue in case of consolidation, possibly to courts in the District of Columbia.
Judge Walker's decision is available online at the EFF's Web site (download PDF).
Computerworld.com staff contributed to this report.