Judge won't halt AT&T wiretapping lawsuit

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Date: November 19, 2006 8:40:20 PM EST
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Subject: Judge won't halt AT&T wiretapping lawsuit

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Judge won't halt AT&T wiretapping lawsuit
By Declan McCullagh, CNET News.com
Published on ZDNet News: November 17, 2006, 3:31 PM PT

SAN FRANCISCO--A federal district judge on Friday rejected the Bush  
administration's request to halt a lawsuit that alleges AT&T  
unlawfully cooperated with a broad and unconstitutional government  
surveillance program.

U.S. District Judge Vaughn Walker said the lawsuit could continue  
while a portion of it was being appealed, despite the U.S. Justice  
Department's arguments that further hearings and other proceedings  
would consequently endanger national security.

"I do think these are matters we can proceed on," Walker said toward  
the end of the status conference here, which began at 11 a.m. PST and  
was attended by around 50 attorneys from the government, nonprofit  
groups, class action law firms and major telecommunications companies.

Friday's ruling represents another preliminary victory for the  
Electronic Frontier Foundation, which filed its lawsuit against AT&T  
in January. In its suit, the EFF charged that AT&T has opened its  
telecommunications facilities up to the National Security Agency and  
continues to "to assist the government in its secret surveillance of  
millions of ordinary Americans."

The ruling is also a win for attorneys in 47 other cases against  
numerous large telecommunications providers. The cases are in the  
process of being consolidated into one mammoth lawsuit in the  
northern district of California.

Last week, the Justice Department filed a 27-page request (click for  
PDF) saying at the least, the court should halt the AT&T case because  
any proceeding would "indirectly confirm or deny classified facts and  
cause harm to the national security."

In July, Walker rejected the Justice Department's attempt to have the  
suit against AT&T dismissed. That prompted federal prosecutors to  
appeal to the 9th Circuit a few days later. Along with AT&T, Verizon  
Communications, BellSouth and Comcast, they urged Walker to delay the  
case in front of him until the appeals courts reached a decision,  
which could take years, if it goes to the U.S. Supreme Court.

The "entire process is fraught with risk," a Justice Department  
attorney said Friday. Bruce Ericson, an attorney for AT&T at  
Pillsbury Winthrop Shaw Pittman, said that more proceedings would be  
useless because all his client could put in "a public answer" would  
be "a general denial."

After EFF's lawsuit was filed, reports of a secret room in an AT&T  
building in San Francisco surfaced and have become central to the  
nonprofit group's litigation.

A former AT&T employee, Mark Klein, has released documents alleging  
the company spliced its fiber optic cables and ran a duplicate set of  
cables to Room 641A at its 611 Folsom St. building. Improperly- 
redacted documents seen by CNET News.com show that AT&T has tried to  
offer benign reasons for the existence of such a room. (AT&T has  
publicly neither confirmed nor denied cooperating with the National  
Security Agency.)

A second wave of suits
Another twist at Friday's status conference was what might happen if  
a second wave of lawsuits is added to the ones already before Judge  
Walker.

A handful of state utility commissioners, including Vermont and  
Missouri, have tried to investigate whether the telecommunications  
companies they regulate have illegally cooperated with the NSA.

In September, for instance, Vermont's Public Service Board said  
Verizon could be ordered to disclose whether it has "provided local  
calling records to the NSA, whether Verizon provided information to  
the NSA before February 2006 and the conditions under which Verizon  
provides others with access to its customer records." (Click for PDF)

The Bush administration has taken legal action to halt those  
proceedings, once again invoking its "state secrets" authority and  
claiming that information harmful to national security could be  
disclosed.

That second wave of cases "raises the same issues," a Justice  
Department lawyer said Friday, arguing it provided an additional  
reason for delay so the court wouldn't have to hear the same issues  
twice.

But Walker let the cases proceed, setting a December 21 date to hear  
additional arguments, including one from media organizations for more  
openness, and a second one on January 11 to return to the question of  
whether to postpone proceedings during the appeal.