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The spy suit wars

A nation divided

Internet Security Threat Report 2014

Valley Justice Two United States District Court judges recently handed down decisions in high-profile cases involving wiretapping and alleged records aggregation on behalf of the National Security Agency (NSA). The suits were brought against AT&T by plaintiffs in the Northern District of California with the legal “expertise” of the Electronic Frontier Foundation (EFF), and in the Northern District of Illinois with the help of the American Civil Liberties Union (ACLU.) The suits allege that AT&T violated constitutional and statutory protections against the disclosure of private information by providing telephone communications and subscriber information to the federal government.

Now, we know what you’re thinking, but the EFF actually won this round. The judge for the Northern District of California decided that those plaintiffs’ case against the telecommunications juggernaut could continue for the time being, while the Illinois judge determined that the “state secrets” doctrine precluded the plaintiffs in that suit from prosecuting the litigation in its current form.

The state secrets doctrine is an evidentiary rule that prohibits disclosure of, well, state secrets. The revelation of those secrets must threaten national security for the rule to apply, and the rule usually bars an airing of military plans or, as in the present instance, espionage operations. (In other words, the clandestine diddling of interns doesn’t count.)

The doctrine was adopted early on in the U.S. legal system, and, like everything else in the States’ legal system, was copied from the English common law. Once it reared its ambiguous head, however, it languished in the realm of legal obscurity for a while – a leading case is still one involving an espionage contract from the Civil War – but has received more and more development as the military-industrial complex has encroached further and further into our lives. The first modern framing of the doctrine occurred in the early part of the Cold War, and it has since popped up in cases involving the Pentagon Papers, CIA contracts and military storehouses.

The state secrets doctrine received remarkably similar treatment by the courts in this instance, considering how flexible and subjective it is. The different outcomes resulted from differences in the claims that the plaintiffs presented to the courts. The California plaintiffs pleaded a wide range of constitutional and statutory violations stemming from both the interception of the content of telephone conversations and the alleged production of customer records; the Illinois case only contained a claim of a violation of the Electronic Communications Privacy Act as a result of the alleged transmission of customer records.

The details behind these current cases have already received a lot of press, including the technical particulars of the program provided by former AT&T employee Mark Klein. The court has sealed most of the documents that Klein obtained from AT&T, since the company claims that they contain proprietary and trade secret information. Statements made by Klein in public, however, describe rooms in AT&T’s San Francisco offices where employees whom the NSA interviewed for a “secret job” installed equipment. These rooms sat adjacent to the area where public phone calls were routed.

Klein also detailed how fiber optic light signals were diverted to a secret room which contained a Narus STA 6400, known for its abilities to search for patterns among large amounts of data.

These revelations seem to blow the state secrets doctrine out of the water, since the workings of the program have now been aired on a very public clothesline. But the California court was quick to note, that the press is not always accurate (the hell you say!), and that verification of accurate stories in the press is not always harmless to national security.

At issue is whether enemies of the U.S. could use the information gained through the lawsuits to decrease the likelihood of their discovery, thus increasing the chance of harm to the country. Verification of the program might lead enemies to avoid AT&T, while proof that it never existed might encourage them to use the company’s services.

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