Feds dip their snouts back in EFF vs. AT&T wiretap case

The Ninth Circuit will grant this appeal, in our opinion. The issue meets all the requirements for a mid-stream appeal – it’s a question of law that controls the matter at hand, but one where there is room for substantial difference of opinion. It will also immediately advance the ultimate termination of the litigation, since the plaintiffs don’t have squat to go on if the privilege is granted.

What the court will do with the appeal is anyone’s guess. The government does actually raise a good point when it argues that the district court in California made a leap of faith based on assumptions not in the record. When determining the existence of privilege, judges may consider evidence that wouldn’t necessarily satisfy the strict federal rules of evidence, but the Northern District judge may have gone a little far here. He assumed that it was “inconceivable” that the government could have carried out its program without the help of the largest telecommunications provider in the country. (That’s AT&T, for those of you keeping score at home.) As commonsensical as that may seem to the layperson, it may be too great of a logical step for the Ninth Circuit to allow.

What’s more, the Ninth Circuit’s leading case on the matter seems to lean towards a grant of the privilege against disclosure here. That case discusses blocking discovery of apparently innocent information if it is part of a “classified mosaic.” That is, if a piece of seemingly harmless information is actually part of a larger state secret scheme, and someone could infer details of the hidden program by examining the innocuous data, then the doctrine would prevent use of any of the data. The court can’t order the government to separate the good information from the bad – it all falls under the privilege. Thus, just because we know that the program exists, the details of its inner workings might still damage national security if exposed. If the Ninth Circuit decides this is so, the information concerning AT&T’s involvement in the NSA program will move beyond the plaintiffs’ reach.

The district court judge read over classified material concerning the program in his chambers, however, and still ruled that the information was open to discovery. And you can bet the farm that the judge knew perfectly well what the hell “classified mosaic” meant. There are always differences of opinion between jurists, though, and appellate circuits overrule district courts on matters of law and fact every day. It’s our guess that the traditionally leftist Ninth Circuit will agree that public revelations of the program place it outside the state secrets doctrine. All we can do now, though, is wait for the gloves to come off once the parties start briefing the matter to the court. That’s when things get nasty. ®

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.