On January 31st 2006, the Electronic Frontier Foundation filed a class action lawsuit against AT&T, accusing the company of giving the National Security Agency direct access to AT&T customers’ telephone and Internet communications and records, without a warrant. Of course, without a warrant. AT&T’s network handles millions of calls a day, and thousands of terabytes of data. According to the EFF, these data affect 73 million U.S. households. Since they can’t all be terrorist suspects, the very idea of a warrant, even one provided by the super-secret, highly permissive Foreign Intelligence Surveillance Court is ludicrous. Warrants are born of targeted, specific requests supported by probable cause. NSA access to these data bears none of those hallmarks. However, the EFF’s suit is against AT&T, not the NSA. The relevant laws pertain to the obligation of telecommunications providers to protect the confidentiality of customer data, dating back to the Telecommunications Act of 1934 (955KB pdf).
On May 15th, 2006 the United States government filed a motion to dismiss the suit, citing the “state secrets” privilege. This legal precedent dates back to 1953 and gives the United States government the power to dismiss lawsuits that it claims would compromise national security. The outcome of this filing is not yet known.
I believe that the United States government’s motive to get the suit dismissed is not about the sensitivity of the information that would be disclosed in court, but about the precedent that would be set if AT&T loses. At present, the NSA’s domestic spying program operates in a bubble of legal uncertainty. The Foreign Intelligence Surveillance Act is the authoritative law regarding both foreign and domestic surveillance, and it makes this warrantless, wholesale hoovering of purely domestic communications spectacularly illegal. However, Attorney General Alberto Gonzales has stated that the program is legal under the presidential powers given by Congress in the days following September 11th, 2001. Specifically, Congress “authorize[d] the President to use all necessary and appropriate force,” which, of course, could include just about anything.
By going after a source of the data (AT&T), and the laws that govern telecommunications data, the EFF avoids miring its resources in the government’s “it’s legal because we say it’s legal” quicksand. True to its current form, the United States Government responded by moving to “disappear” the lawsuit. Otherwise, the government risks the court ruling that AT&T broke the law, and must therefore rescind the NSA’s data access, and pay damages to each affected customer to the tune of at least $21,000 each. The other telecoms would then respond by doing what Qwest did, which was ask for a FISA warrant or a document signed by the Attorney General stating that the request is legal. To do otherwise would expose them to liability.
Update, 5/22/2006 8:45pm: Wired.com just made public the AT&T internal documents and testimony of Mark Klein, former AT&T technician and whistleblower. The court had put these documents under seal, but Wired felt that “the public’s right to know the full facts in this case outweighs AT&T’s claims to secrecy.”