Judge Rejects Customer Suit Over Records From AT&T

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After being front page of every newspaper when the NSA story broke weeks ago, buried deep on the NYT and most other rags was this story today...

July 26, 2006

Judge Rejects Customer Suit Over Records From AT&T By ADAM LIPTAK

A federal judge in Chicago dismissed a class-action lawsuit yesterday against AT&T that claimed it had illegally given information about its customers to the National Security Agency. The judge, Matthew F. Kennelly, based his ruling on the state secrets privilege, which can bar suits that would disclose information harmful to national security.

The ruling is at first blush at odds with a decision last week by a federal judge in San Francisco. That judge, Vaughn R. Walker, allowed a similar suit against AT&T to proceed notwithstanding the state secrets privilege.

But the two decisions can be reconciled, Judge Kennelly wrote. The Chicago case concerns records of phone calls, including when they were placed, how long they lasted and the phone numbers involved. The San Francisco case, by contrast, mainly concerns an N.S.A. program aimed not at a vast sweep of customers’ records but at the contents of a more limited number of communications.

Because the Bush administration has confirmed the existence of such targeted wiretapping, the San Francisco suit could proceed without running afoul of the state secrets privilege, Judge Walker ruled last week. ‘‘The government has opened the door for judicial inquiry,” he wrote, “by publicly confirming and denying material information about its monitoring of communications content.”

In his decision yesterday, Judge Kennelly said there had been no comparable confirmation by the government or AT&T of “the existence or nonexistence of AT&T’s claimed record turnover.” He refused to rely on news accounts of the program as proof of its existence and noted that “no executive branch official has officially confirmed or denied the existence of any program to obtain large quantities of customer telephone records.”

The case was brought by the journalist Studs Terkel, five other individual plaintiffs and the American Civil Liberties Union of Illinois. They argued that the program violated a federal law that forbids the disclosure of some customer records to the government, and they sought a court order to stop it.

Among the papers the government submitted to Judge Kennelly to urge the dismissal of the case on state secrets grounds was a declaration from John D. Negroponte, the director of national intelligence. “Even confirming that a certain intelligence activity or relationship does not exist, either in general or with respect to specific targets or channels,” Mr. Negroponte said, “would cause harm to the national security because alerting our adversaries to channels or individuals that are not under surveillance could likewise help them avoid detection.”

Judge Kennelly noted his “great antipathy” for dismissing the suit. “Nothing in this opinion,” he wrote, “prevents the plaintiffs from using the legislative process, not to mention their right of free speech, to seek further inquiry by the executive and legislative branches into the allegations in their complaint.”

More than 30 lawsuits over government surveillance programs are pending in the nation. Only one, in Detroit, has moved beyond questions of procedure and privilege to consider the legality of the wiretapping program. A decision in that case is expected soon.

The New York Times

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