[Infowarrior] - Judge Rejects Customer Suit Over Records From AT&T

[Richard Forno]

July 26, 2006
Judge Rejects Customer Suit Over Records From AT&T
By ADAM LIPTAK
http://www.nytimes.com/2006/07/26/us/26nsa.html?_r=1&oref=slogin&pagewanted=
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A federal judge in Chicago dismissed a class-action lawsuit yesterday
against AT&T claiming it had illegally given information about its customers
to the National Security Agency. The judge, Matthew F. Kennelly of Federal
District Court, based his ruling on the state secrets privilege, which can
bar suits that would disclose information harmful to national security.

The ruling is at first blush at odds with a decision last week by a federal
judge in San Francisco. That judge, Vaughn R. Walker of Federal District
Court for the Northern District of California, allowed a similar suit
against AT&T to proceed notwithstanding the state secrets privilege.

But the two decisions can be reconciled, Judge Kennelly wrote. The Chicago
case concerns records of phone calls, including when they were placed, how
long they lasted and the phone numbers involved. The San Francisco case, by
contrast, mainly concerns an N.S.A. program aimed not at a vast sweep of
customers¹ records but at the contents of a more limited number of
communications.

Because the Bush administration has confirmed the existence of such targeted
wiretapping, the San Francisco suit could proceed without running afoul of
the state secrets privilege, Judge Walker ruled last week. ŒŒThe government
has opened the door for judicial inquiry,² he wrote, ³by publicly confirming
and denying material information about its monitoring of communications
content.²

In his decision yesterday, Judge Kennelly said there had been no comparable
confirmation by the government or AT&T of ³the existence or nonexistence of
AT&T¹s claimed record turnover.² He refused to rely on news accounts of the
program as proof of its existence and noted that ³no executive branch
official has officially confirmed or denied the existence of any program to
obtain large quantities of customer telephone records.²

The case was brought by the journalist Studs Terkel, five other individual
plaintiffs and the American Civil Liberties Union of Illinois. They argued
that the program violated a federal law that forbids the disclosure of some
customer records to the government, and they sought a court order to stop
it.

Among the papers the government submitted to Judge Kennelly to urge the
dismissal of the case on state secrets grounds was a declaration from John
D. Negroponte, the director of national intelligence. ³Even confirming that
a certain intelligence activity or relationship does not exist, either in
general or with respect to specific targets or channels,² Mr. Negroponte
said, ³would cause harm to the national security because alerting our
adversaries to channels or individuals that are not under surveillance could
likewise help them avoid detection.²

Judge Kennelly noted his ³great antipathy² for dismissing the suit. ³Nothing
in this opinion,² he wrote, ³prevents the plaintiffs from using the
legislative process, not to mention their right of free speech, to seek
further inquiry by the executive and legislative branches into the
allegations in their complaint.²

More than 30 lawsuits over government surveillance programs are pending in
the nation. Only one, in Detroit, has moved beyond questions of procedure
and privilege to consider the legality of the wiretapping program. A
decision in that case is expected soon.