Judge hears motions for dismissal
of AT&T surveillance lawsuit

By Julia Cheever, Bay City News Service

June 23, 2006

SAN FRANCISCO (BCN) - A U.S. Justice Department attorney told a federal judge in San Francisco today that revealing whether AT&T Corp. gives communications records to the National Security Agency would aid terrorists.

Assistant Attorney General Peter Keisler argued before U.S. District Judge Vaughn Walker that information about what, if any, role AT&T has played is "a secret of the highest order."

Revealing the information in court would have "a very significant effect -- you are enabling the terrorists to communicate more effectively and efficiently," Keisler argued.

The Justice Department has asked Walker to dismiss a lawsuit filed against AT&T by four Californians who claim the company has violated communications privacy laws by giving millions of Americans' telephone and Internet records to the NSA.

The government contends that allowing the case to proceed would result in revealing state secrets vital to national security.

Walker took the bid for dismissal under submission after a three-hour hearing and did not say when he will rule.

He asked Keisler during the hearing how the government could rely on the state secrets doctrine "in a case like this where there is so much on the public record" in media reports on AT&T's alleged role.

The attorney responded that having official information, as opposed to media speculation, about government surveillance would aid terrorists in deciding what communications methods to use.

"What a terrorist does when he decides how to communicate is to balance the risks of using particular communications methods," Keisler said.

Robert Fram, representing the plaintiffs, argued that the claims against AT&T could proceed without revealing state secrets.

Fram said that preliminary evidence, including a sworn statement by retired AT&T technician Mark Klein, "clearly establish that some kind of assistance by AT&T to a government program has taken place.

"We're not speculating. We are saying very strongly that we have record evidence that establishes a violation of these statutes," Fram said.

Klein's statement says he observed in 2003 that copies of domestic and international communications were diverted via fiber-optic cable to a special secure room at an AT&T facility in San Francisco in 2003. Only AT&T employees with National Security Agency clearances were allowed access to the room, he said.

Separately, AT&T has sought dismissal of the lawsuit on the ground that the plaintiffs' dispute should be with the government, not with AT&T.

Without conceding that AT&T had taken any part in a surveillance program, AT&T attorney David Anderson told the judge that the company's alleged role was just that of "a passive agent of the government."

Electronic Frontier Foundation attorney Kevin Bankston, representing the plaintiffs, argued that AT&T should be liable for violating the federal communications privacy laws.

"The entire purpose of these statutes was to protect the public from the awesome power of electronic surveillance," Bankston maintained.

The lawsuit was filed only against AT&T and did not name the government as a defendant. The Justice Department sought and obtained the judge's permission to become a party in the case for purposes of seeking dismissal of the lawsuit.

The four plaintiffs are AT&T customers Tash Hepting and Gregory Hicks of San Jose, Carolyn Jewel of Petaluma and Erik Knutzen of Los Angeles.

The lawsuit seeks to be certified as a class action on behalf of all AT&T customers in the United States.

AT&T Corp. issued a statement today saying, "There has been a lot of speculation on this issue, but the fact is, AT&T does not provide customer information to law enforcement authorities or government agencies without legal authorization."

The statement said, "We prize the trust our customers place in us and, in all instances, AT&T obeys the law."

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