Phone records lawsuit to proceed

The Mercury News reported Friday that:

In a setback for the Bush administration's secretive Terrorist Surveillance Program, a federal judge in San Francisco on Thursday denied a government motion to quash a warrantless-wiretapping lawsuit against AT&T.

U.S. Northern District Judge Vaughn R. Walker rejected the government's claim that allowing the suit to proceed would compromise state secrets.

In a 72-page order, which attorneys for the plaintiffs called a victory, Walker wrote that dismissing the case at this early stage ``would sacrifice liberty for no apparent enhancement of security.''

The ruling rejected the government's claim that the very existence of the super-secret National Security Agency (NSA) eavesdropping program was a state secret requiring dismissal of the case. Walker cited numerous newspaper stories, testimony by the U.S. attorney general and statements by President Bush to rebut that claim.

Walker is the first judge to rule in lawsuits filed in federal courts in Michigan, Illinois and elsewhere around the country against the program, the existence of which was disclosed in December by the New York Times. The government has since admitted monitoring domestic communications in which one party is outside the country, but says it's a targeted effort to identify Al-Qaida agents in the United States. But its critics claim that the program is an electronic dragnet that invades the privacy of millions of Americans by monitoring their phone calls and Internet communications.

The ruling means that the Electronic Frontier Foundation (EFF), a non-profit privacy group that brought the class-action lawsuit on behalf of AT&T customers, may soon begin asking AT&T to produce evidence. But first, the judge said he wants to appoint an expert to ``disentangle sensitive information from non-sensitive information'' and determine whether evidence would compromise national security if it is produced in court.

EFF sued AT&T in January for allegedly violating the First and Fourth Amendments by illegally helping the NSA intercept its customers' communications, and for violating various federal statutes concerning covert government eavesdropping programs.

A Department of Justice official said it is reviewing the judge's ruling and has made no determination as to what its next step will be in the case.

The government had argued that ``the very subject matter'' of the case involves a state secret, and that even if the court found AT&T to have violated the law, it couldn't award damages because that would confirm the allegations and disclose the secret.

The government can appeal the order to the 9th Circuit Court of Appeals. But in crafting it, Walker adhered closely to rules established by earlier cases for granting state-secret dismissals. It is simply too early in the case to do so, he ruled.

The complete story may be found here:
http://www.siliconvalley.com/mld/siliconvalley/business/technology/15091650.htm