The spy suit wars
A nation divided
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.
The California court determined that government admissions of the wiretapping program served to pull the program out from under the state secrets umbrella. Once confirmed by the government itself, the court reasoned, the government could not turn around and claim that the program was a secret. Moreover, enemies of the state already know that the program exists, so disclosures during the lawsuit won’t threaten national security.
So, while press reports of the wiretapping program certainly played a role in the court’s decision, the real legal kicker was the government’s upfront admission of the program’s existence. Unfortunately for the Illinois plaintiffs, the government has made no such admission concerning the alleged turnover of customer records to the NSA.
The California court didn’t expressly state that the state secrets doctrine prevented discovery of the details of the subscriber information program, nor did it dismiss that section of the case until such details emerged. Instead, it allowed that portion of the suit to continue based on its opinion that further details might emerge that would confirm or deny the program.
The Illinois court, however, ruled that the plaintiffs in that case lost all grounds for their suit once it brushed the details of the customer records program under the state secrets rug. The court decided that the program was still a state secret since neither AT&T nor the government had owned up to running it. Once information about the program traveled out of the plaintiffs’ reach, the court ruled that the plaintiffs have no standing to sue, since they can neither prove that they are suffering a present injury, nor that there is a real and immediate threat of repeated injury.
This reasoning seems to us to be a case of 2 + 2 = 5, however. AT&T has admitted in public statements that it provides assistance to the federal government upon request if that assistance is within the bounds of the law; another, smaller, phone company (Qwest) has admitted that the government asked them to turn over customer records; therefore, it stands to reason that the government asked the largest phone service provider in the country to turn over its records, and it also stands to reason that AT&T would comply upon a simple assurance from the government that the request was legal.
Ah, but the beauty of the system is the requirement that the information come from “sources that possess substantial indicia of reliability” before juries may consider any of the assumptions contained therein. And, as we all know, USA Today - aka McPaper - just doesn’t qualify. The information has to come straight from the horse’s mouth. So until hard evidence is either released or (please, Lord, please) leaked to the press, this particular claim is out of the Illinois court.
But wait! The court gave the plaintiffs until August 1 to amend their pleadings to include claims along the lines of the California suit. The court also examined classified documents and wrote a separate, also-classified memorandum expressing doubts over a few of the government’s claims about the program (which obviously must exist in some form since there were classified documents to examine – a fact which the judge might be trying to hint to everyone, since he mentions this classified memorandum throughout his opinion even though it has no bearing on the decision).
This memorandum is available to the appellate courts if the plaintiffs decide to appeal the decision to the Seventh Circuit. If we were the justices on that esteemed court, we would pray for an appeal just to read the contents of that memo. And such an appeal might be on the way. The ousted plaintiffs could file an interlocutory appeal with the Seventh, which could toll the period available to file an amended complaint. That way, the appellate court could revisit this issue while the plaintiffs formulate new theories upon which to sue AT&T.
Either way, there will be lots of ACLU attorneys burning the midnight oil this weekend, which should help the rest of us all sleep a little more soundly at night. Just don’t call anyone to tell them about it – odds are, you’re being watched. And, just like ACLU attorneys, the Narus STA 6400 never sleeps.®
Kevin Fayle is an attorney, web editor and writer in San Francisco and a graduate of the University of California, Hastings College of the Law. When he's not pointlessly running in circles around Golden Gate Park, he scrutinizes and analyzes U.S. Federal case law for the frequent signs of the Second Coming. He keeps a close eye on IP and International Law issues.