Wiretapping suit against AT&T can go forward

Judge says there is a case to answer, but allows 'instant appeal' to higher court

A federal judge has denied motions by the US government and AT&T to stop a lawsuit over alleged participation by the carrier in an illegal wiretapping program by the US National Security Agency (NSA).

Judge Vaughn R Walker of the US District Court for the Northern District of California denied the government's motion for dismissal of the case or summary judgement on the basis that the case involved state secrets. He also denied AT&T's motion to have the case dismissed.

The civil liberties group Electronic Frontier Foundation sued AT&T in January on behalf of the carrier's customers, alleging it diverts traffic from its fibre-optic lines to the NSA as part of an illegal anti-terrorist surveillance programme. The suit, one of several in the works, followed press reports last year about several major carriers providing data for broad domestic spying initiatives.

The case still could be halted. In his decision, the judge allowed the parties to make an instant appeal to a higher court, a move that could lead to all or part of the case being stayed.

To deal with the issue of state secrets, Walker proposed naming an independent expert to decide whether certain disclosures might endanger national security. He asked for arguments from the parties on why an expert should not be appointed, as well as possible nominees. That expert would be someone with high-level clearances and intelligence experience, he says.

Attorneys for the plaintiffs praised Walker's decision.

"He rejected the government's bold attempt to sweep this entire case under the rug on day one," says Robert Fram, an attorney from Heller Ehrman who is working with the EFF on the case. Attorneys from the EFF also praised the idea of an independent expert. Evidence should be looked at from a state secrets perspective one piece at a time, they say.

Too much information has already been disclosed to stop the case, Walker wrote in his decision. "The very subject matter of this action is hardly a secret," he says. Statements by the Bush administration have disclosed the general outline of an anti-terrorist surveillance programme and AT&T has said it assists the government with classified matters, he says.

In addition, AT&T can't claim to be immune from lawsuits just because it is a carrier following government orders, he says.

The court might still decide that the need for secrecy could prevent EFF from gathering evidence or AT&T from defending itself, but it is too early to determine that, Walker says. Also, whether the surveillance was properly authorised is a matter for further litigation, he says.

The plaintiffs' attorneys said they can now start compiling evidence unless the case is stayed pending an appeal.

AT&T did not immediately respond to a request for comment.

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