Intellectual Property News

Judge's Refusal to Dismiss EFF's Spying Case Sets Stage for Congressional Showdown

Ruling Comes as Senators Consider Dramatic Changes to Surveillance Law

San Francisco - A federal judge has refused to dismiss the Electronic Frontier Foundation's (EFF's) case against AT&T for collaborating with the NSA in illegal spying on millions of ordinary Americans, setting the stage for a congressional showdown over proposed dramatic changes in federal surveillance law.

EFF filed the class-action suit against AT&T in January, alleging that the telecommunications company has given the National Security Agency (NSA) secret, direct access to the phone calls and emails going over its network and has been handing over communications logs detailing the activities of millions of ordinary Americans. The government intervened in the case and asked that it be dismissed because the suit could expose "state secrets." But Thursday, U.S. District Judge Vaughn Walker refused: "The compromise between liberty and security remains a difficult one. But dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security."

"We are gratified that Judge Walker rejected the government's overbroad claims of secrecy, and that our case on behalf of AT&T customers can go forward," said EFF Staff Attorney Kevin Bankston. "Judge Walker correctly found that the government, after having already admitted to and extensively commented on the NSA's spying program, cannot now claim that it is a secret and sweep AT&T's role under the rug."

EFF's victory against government secrecy, however, comes in the shadow of a legislative proposal that could spell trouble for court challenges against the NSA program. Last week, Pennsylvania Senator Arlen Specter and the White House announced a deal on legislation that could lead the government to attempt to shuffle EFF's lawsuit and other challenges out of the traditional court system and into a secret court created by the Foreign Intelligence Surveillance Act (FISA). Until now, the FISA court's only job has been to approve secret surveillance requests by the government, in proceedings where only government lawyers get to argue.

"A decision to bury these cases in the shadowy FISA court would not only violate our nation's tradition of open judicial proceedings, it's also unnecessary," said EFF Staff Attorney Kurt Opsahl. "As Judge Walker demonstrated today, the conventional court system is perfectly capable of handling these cases and can do so by balancing the public's need for transparency with proper protections for security. Any bill that would attempt to sweep these cases into the secret court should be rejected."

Judge Walker has requested that the parties submit briefs by July 31 on how the case should proceed if the government and AT&T appeal his decision as expected, and a hearing will take place August 8. Also, on July 27, a panel of judges will consider whether to consolidate this case with others challenging the illegal spying program.

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