Judge hears motions for dismissal
of AT&T surveillance lawsuit
By Julia Cheever, Bay City News Service
June 23, 2006
SAN FRANCISCO (BCN) - A U.S. Justice Department attorney
told a federal judge in San Francisco today that revealing whether
AT&T Corp. gives communications records to the National Security
Agency would aid terrorists.
Assistant Attorney General Peter Keisler argued before U.S. District
Judge Vaughn Walker that information about what, if any, role
AT&T has played is "a secret of the highest order."
Revealing the information in court would have "a very significant
effect -- you are enabling the terrorists to communicate more
effectively and efficiently," Keisler argued.
The Justice Department has asked Walker to dismiss a lawsuit
filed against AT&T by four Californians who claim the company
has violated communications privacy laws by giving millions of
Americans' telephone and Internet records to the NSA.
The government contends that allowing the case to proceed would
result in revealing state secrets vital to national security.
Walker took the bid for dismissal under submission after a three-hour
hearing and did not say when he will rule.
He asked Keisler during the hearing how the government could
rely on the state secrets doctrine "in a case like this where
there is so much on the public record" in media reports on
AT&T's alleged role.
The attorney responded that having official information, as opposed
to media speculation, about government surveillance would aid
terrorists in deciding what communications methods to use.
"What a terrorist does when he decides how to communicate
is to balance the risks of using particular communications methods,"
Robert Fram, representing the plaintiffs, argued that the claims
against AT&T could proceed without revealing state secrets.
Fram said that preliminary evidence, including a sworn statement
by retired AT&T technician Mark Klein, "clearly establish
that some kind of assistance by AT&T to a government program
has taken place.
"We're not speculating. We are saying very strongly that
we have record evidence that establishes a violation of these
statutes," Fram said.
Klein's statement says he observed in 2003 that copies of domestic
and international communications were diverted via fiber-optic
cable to a special secure room at an AT&T facility in San
Francisco in 2003. Only AT&T employees with National Security
Agency clearances were allowed access to the room, he said.
Separately, AT&T has sought dismissal of the lawsuit on the
ground that the plaintiffs' dispute should be with the government,
not with AT&T.
Without conceding that AT&T had taken any part in a surveillance
program, AT&T attorney David Anderson told the judge that
the company's alleged role was just that of "a passive agent
of the government."
Electronic Frontier Foundation attorney Kevin Bankston, representing
the plaintiffs, argued that AT&T should be liable for violating
the federal communications privacy laws.
"The entire purpose of these statutes was to protect the
public from the awesome power of electronic surveillance,"
The lawsuit was filed only against AT&T and did not name
the government as a defendant. The Justice Department sought and
obtained the judge's permission to become a party in the case
for purposes of seeking dismissal of the lawsuit.
The four plaintiffs are AT&T customers Tash Hepting and Gregory
Hicks of San Jose, Carolyn Jewel of Petaluma and Erik Knutzen
of Los Angeles.
The lawsuit seeks to be certified as a class action on behalf
of all AT&T customers in the United States.
AT&T Corp. issued a statement today saying, "There has
been a lot of speculation on this issue, but the fact is, AT&T
does not provide customer information to law enforcement authorities
or government agencies without legal authorization."
The statement said, "We prize the trust our customers place
in us and, in all instances, AT&T obeys the law."
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