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Judge to Keep AT&T Documents in NSA Spying Case Sealed for Now

By Keith Regan
May 18, 2006 9:45 AM PT

AT&T lost its bid to have a former employee forced to return records to the company that may show it let federal intelligence agencies access the phone giant's records, but won a small victory when a judge issued an order Wednesday that the documents be kept private pending further court action.

Judge to Keep AT&T Documents in NSA Spying Case Sealed for Now

The closely watched case involves a suit against AT&T brought by the Electronic Frontier Foundation (EFF) in January, which has said it obtained documents from a former employee of the phone company that shows it cooperated with government eavesdropping efforts -- a violation of a 70-year-old telecommunications law that prohibits the turning over of customer data to the government without a warrant or court order.

Sensitive Information

Though AT&T had hoped the judge would force the group to return the records, the judge did leave open the possibility that they would never see the light of day in the current court case.

Chief U.S. District Judge Vaughn Walker scheduled a June 23 hearing on motions from both AT&T and the Bush administration to dismiss the EFF's suit. The government intends to argue that proceeding with the case would put sensitive national security information at risk.

"These are motions that may very well terminate the litigation at an early stage," Walker said. "I think the best course of action is to preserve the status quo."

The lawsuit predates last week's reports that AT&T, Verizon and BellSouth had all cooperated with the National Security Agency (NSA) in an effort to create a massive database of tens of millions of phone calls. Since then, both Verizon and BellSouth have denied cooperating in the way news reports, first published in USA Today, claimed. The newspaper has said it stands by its story, which quoted an unnamed intelligence community official.

Multiple Fronts

The courtroom drama unfolded a day before a Congressional hearing began on Bush's nomination of Air Force Gen. Michael Hayden as director of the Central Intelligence Agency. Hayden ran the NSA when the phone data collection was said to have begun. Lawmakers have agreed to limit public discussions of surveillance programs to protect national security.

In its court case with the EFF, AT&T said letting the documents become public would harm it from a competitive standpoint and could weaken national security, an argument backed by the Bush administration.

The first round focused on documents that Mark Klein, who worked at AT&T for 22 years before leaving in 2004, took with him. Klein has also said he witnessed the installation of equipment that would give the NSA access to e-mails sent and received by AT&T customers.

The EFF said the ruling was a victory for openness, as was an earlier decision to keep the hearing open to the public.

"Taken together with the court's refusal to close the courtroom as AT&T had requested, we think today was a real victory for the public's right to know, and for our ability to litigate this case," EFF staff attorney Kevin Bankston told the E-Commerce Times.

Legal Actions Abound

The case could proceed in unusual fashion, attorneys noted, with the U.S. Justice Department offering to provide classified material for the judge to review that won't be seen by the EFF, making it difficult for that group to respond to arguments made to dismiss the case.

Experts also say AT&T and other telecommunications companies may be able to avoid culpability under the law if they can show the Bush administration authorized the sharing of data, with exceptions made for such instances. If such authorization does not exist, the phone companies could be liable for tens of millions of dollars in damages.

Immediately after the NSA database reports, a group of attorneys filed suit against Verizon on similar grounds to the EFF suit, which covers both e-mail and telephone records and a separate suit, seeking US$200 billion in damages, was filed against the three major telcos that were said to have cooperated with authorities.

The Electronic Information Privacy Clearinghouse (EPIC) has also asked the Federal Communication Commission to investigate the allegations.

Meanwhile, there are signs the fallout from the NSA disclosures could spread to Internet companies, since the data allegedly being intercepted could include a host of Web services information, from Gmail and Yahoo mail accounts to records of searches performed on the Web. Google won a public relations coup when it refused to turn over copies of Web search records sought by lawmakers attempting to prove the need for more child-pornography protections on the Web.

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