Original URL: http://www.theregister.co.uk/2006/08/02/vj_whitehouse_wiretap/

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

Cracking the 'classified mosaic'

By Kevin Fayle

Posted in Media, 2nd August 2006 22:01 GMT

Valley Justice Surprise, surprise. The US government has asked a California court to take a second look at a recent decision that allowed the EFF’s wiretap case to proceed against AT&T.

The government has already tried once before to meddle with the EFF's case against AT&T. It had an earlier attempt to dismiss the EFF case shut down after the judge for the Northern District of California determined that the state secrets doctrine would not prevent disclosure of AT&T’s involvement (or, to be fair, possible non-involvement) in the NSA’s wiretapping scheme. Now, the government has asked to appeal that decision to the Ninth Circuit in San Francisco.

You’ll remember, of course, that the plaintiffs in the suit, represented by the EFF’s cracker-jack legal team, allege that AT&T violated US constitutional and statutory law by diverting public telephone calls going through its San Francisco station into a “secret room” set up by the NSA that contained a pattern-matching computer. They also accuse the telco giant of turning over subscriber information to the Feds in violation of the Electronic Communications Privacy Act.

The government, in its petition to the Ninth Circuit, calls the Northern District’s denial of the federal privilege a “highly unusual action.” And, after all, it must be quite unusual for this administration to not get its way in the courts, although they should be getting more used to it these days.

Just last week, for example, a district court judge in Chicago gave the Feds a hard time. The Chicago court had its own version of the wiretap case to deal with in which the ACLU – instead of the EFF – had AT&T in its sights.

That judge dismissed the case, which dealt only with the surveillance of customer records and not the interception of the contents of communications, but also allowed the plaintiffs to add the same claims that the Northern District upheld just days before. The government mentioned the dismissal in its petition this week, just not the fact that the court was in agreement with the essential ruling of the Northern District’s opinion. Very convenient for the government’s argument, but a fact not likely to escape the attention of the Ninth Circuit judges.

The government’s main claim in its petition seems to be that (gasp!) the California judge disagreed with John Negroponte, the Director of National Intelligence, about how to protect information vital for the U.S. national defense, thus usurping the role of the executive branch and generally making a bloody mess of the whole separation of powers.

This argument, however, misses the mark. The judge didn’t make a decision about the best way to conduct intelligence operations (which is the exclusive role of the executive branch); he simply determined that, as a matter of law, the information necessary for the case to go forward did not fall under a legal privilege against disclosure. This flowed from the fact that the government had already admitted the program existed and described its basic operations, thus any further revelations would not threaten national security. You see, things stop being secret when you tell everyone about them, Feds – it’s something we all learned in elementary school.

What the government is saying basically boils down to this: we’ve decided that this information should remain secret, and therefore you should just trust us, keep the information secret and send everyone home. If this were sufficient, however, there would be no need for any discussion of the state secrets doctrine or any other executive privilege, and we would all be calling each other “Comrade.”

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.