Government intervenes in warrantless wiretapping lawsuit

May 15, 2006

Early Saturday morning, the Department of Justice made good its threat to file a motion to dismiss a class-action lawsuit brought by EFF against ATT over its collaboration with the NSA's massive program to wiretap and data-mine Americans' communications.

Like the spying the Electronic Frontier Foundation (EFF) wants to reveal in detail, the filing by Justice took place when very few people were around to witness it. The EFF noted how Justice submitted its 34-page motion early Saturday morning.

The DoJ motion comes as little surprise as the government previously declared an interest in the case back in April.

The motion was accompanied by declarations by Lieutenant General Keith B. Alexander, Director, National Security Agency and John D. Negroponte, Director of National Intelligence.

In the filing, Negroponte said "After careful and actual personal consideration of the matter, I have determined that the disclosure of certain information implicated by Plantiff's claims could reasonably be expected to cause exceptionally grave damage to the national security of the United States and, thus, must be protected from disclosure and excluded from this case."

Under the "state secrets privilege," the government can request the dismissal of lawsuits where litigation and discovery of evidence could jeopardize its intelligence efforts.

"The government is trying to lock out any judicial inquiry into AT&T and the NSA's illegal spying operation," said EFF Staff Attorney Kurt Opsahl. "It is illegal for major telecommunications companies to simply hand over private customer information to the government. They should not be allowed to hide their illegal activity behind government assertions of 'state secrets' to prevent the judiciary from stepping in to expose and punish the illegal behavior. If the government's motion is granted, it will have undermined the freedoms our country has fought so hard to protect."

EFF's federal lawsuit against AT&T alleges that the telecommunications company has given the NSA secret, direct access to the phone calls and emails going over its network, and has been handing over communications logs detailing the activities of millions of ordinary Americans.

On Wednesday, May 17, at 10 a.m., a U.S. District Court judge in San Francisco will hear oral arguments about the unsealing of critical documents in the lawsuit. The sealed evidence at issue includes a declaration by Mark Klein, a retired AT&T telecommunications technician, and several internal AT&T documents that support EFF's allegations. AT&T wants the documents returned and argues that they should not be used as evidence in the case.

This week, a USA TODAY report bolstered key allegations in EFF's lawsuit, detailing how AT&T, Verizon, and BellSouth provided phone call records about of tens of millions of their customers to the NSA without any legal authorization. The same week, lawyers at the Justice Department were forced to halt their probe into the DOJ's involvement in the spying program because they were refused security clearance by the NSA.

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