AT&T told an appeals court in a written brief Monday that the case against it for allegedly helping the government spy on its customers should be thrown out, because it cannot defend itself -- even by showing a signed order from the government -- without endangering national security.
A government brief filed simultaneously backed AT&T's claims and said a lower court judge had exceeded his authority by not dismissing the suit outright.
Because plaintiffs' entire action rests upon alleged secret espionage activities, including an alleged secret espionage relationship between AT&T and the Government concerning the alleged activities, this suit must be dismissed now as a matter of law," the government argued in its brief.
The telecom giant and the government are appealing a June ruling in a federal district court that allowed the suit brought by the Electronic Frontier Foundation against the telecom to proceed, despite the government's invocation of a powerful tool called the "states secrets privilege," which allows it to have civil cases dismissed when national secrets are involved.
California Northern District Court Chief Judge Vaughn Walker ruled, however, that since the government had admitted it was wiretapping Americans without a warrant and that AT&T had to be involved, the case could go forward tentatively. The Ninth Circuit Court of Appeals will hear the government and AT&Ts' appeal in the coming months.
"This case cannot and should not go forward where AT&T is disabled from responding to
allegations or evidence tendered by the plaintiffs, and is therefore deprived of the
ability to defend itself against potentially massive liability," AT&T's lawyers wrote in a brief (.pdf). "Moreover, as this Court has explained, although a dismissal in contexts like this one may appear 'harsh' for the individual plaintiffs, the 'greater public good,' and "ultimately the less harsh remedy," is the protection of military and intelligence secrets the release of which could harm the public's safety."
The suit, which relies heavily on documents provided to the rights group by former AT&T employee Mark Klein, alleges that AT&T helped the government spy on internet communications, data-mine domestic call records and listen in on phone calls without a warrant as required by the Foreign Intelligence Surveillance Act. The government, which says it has inherent constitutional powers to wiretap in the time of war, said in January it would stop the warrantless wiretapping of certain overseas phone calls and get warrants from the court it evaded.
AT&T also argues that all of lawsuit needs to be thrown out because the government has never admitted to spying on internet traffic and getting phone records. It has only admitted to wiretapping overseas communications where one end of the communication belongs to a person suspected of terrorist links. Since the EFF defendants say they aren't terrorists or communicate with terrorists, the only part of the spying that has been admitted -- and thus admissible in court -- doesn't apply to them, AT&T argues. Since the rest of the purported surveillance is thus secret the case has to be thrown out.
As to Plaintiffs' claims of harm from untargeted content surveillance, the government has not acknowledged the existence of any such program, and any information about the methods or targets of alleged government surveillance is unquestionably covered by Director Negroponte's invocation of the state secrets doctrine.
AT&T furthermore argues that the lower court's ruling that AT&t had to be involved due to the width of the surveillance program and the size of AT&T was an uninformed guess:
The district court used a chain of conjecture, hypothesis, and unwarranted inference to suggest that AT&T's alleged participation in these programs was not in fact a secret. The court, for instance, relied on its own unfounded and inexpert speculation that content surveillance requires the cooperation of a telecommunications provider.
EFF will file its response later this month, and will likely argue, as it already has in the district court, that Congressional officials have admitted that some of the nation's largest telecoms did turn over call record databases to the government, so that is not a secret either.
The appeals court has not yet set a date for oral arguments.