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Bush administration to intervene in ATT surveillance case

April 29, 2006

The United States government filed a Statement of Interest Friday in the Electronic Frontier Foundation's (EFF's) class-action lawsuit against ATT, announcing that the government would assert the military and state secrets privilege and intervene to seek dismissal of the case.

In an 8-page document filed with a federal court in the northern district of California, the U.S. Justice Department said it will intervene in the lawsuit.

The Bush administration did carefully note, however, that a mere invocation of the state secret privilege should not be viewed as confirmation that AT&T did anything untoward, saying even the non-existence of the activity is a state secret.

"The United States cannot disclose any national security information that may be at issue in this case. However, the fact that the United States will assert the state secrets privilege should not be construed as a confirmation or denial of any of Plaintiffs' allegations, either about AT&T or the alleged surveillance activities. When allegations are made about purported classified government activities or relationships, regardless of whether those allegations are accurate, the existence or non-existence of the activity or relationship is potentially a state secret," argues the document.

The government is preparing to submit its state secrets privilege assertion, motion to intervene, and motion to dismiss by May 12, 2006, prior to the scheduling conference set for May 17, 2006, and in advance of the dates on which AT&T's response to EFF's pending motion for a preliminary injunction is due (May 18, 2006) and scheduled to be heard (June 21, 2006).

The government intends to assert the military and state secrets privilege pursuant to 28 U.S.C. 517. The state secrets privilege, outlined by the Supreme Court in a 1953 case, permits the government to protect against the unauthorized disclosure in litigation of information that may harm national security interests. If upheld, a state secrets privilege assertion has the initial effect of excluding certain information from a case.

In addition, however, the protection of state secrets often requires dismissal of a case.

The government believes that principle to be applicable; thus, in addition to asserting the state secrets privilege, the government also intends to file a motion to intervene in the action under Rule 24 of the Federal Rules of Civil Procedure for the purpose of seeking dismissal of the lawsuit.

EFF's lawsuit accuses AT&T of collaborating with the National Security Agency in its massive surveillance program.

According to an engineer at AT&T, the company maintains numerous facilities that host very expensive Juniper routers for this project. These routers have specially designed cards in them to shunt ALL OF THE TRAFFIC from AT&T peering points to NSA analysis centers around the country. Peering traffic means not just traffic that begins and ends on AT&T's network but any traffic from networks that AT&T has peering arrangements with.

EFF's evidence regarding AT&T's dragnet surveillance of its networks, currently filed under seal, includes a declaration by Mark Klein, a retired AT&T telecommunications technician, and several internal AT&T documents. This evidence was bolstered and explained by the expert opinion of J. Scott Marcus, who served as Senior Advisor for Internet Technology to the Federal Communications Commission from July 2001 until July 2005.

Much of the evidence in the case is currently under seal, as AT&T claims public release of the documents would expose trade secrets. A hearing on the issue is scheduled for May 17th.

EFF: AT&T forwards all Internet traffic into NSA
Whistleblower outs NSA's secret spy room at AT&T





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