Judge Rejects Call to Release AT& T Papers

By Karen Gullo and Joel Rosenblatt
Bloomberg News
Thursday, May 18, 2006

A federal judge yesterday rejected a privacy group's request to release documents that it claims show AT&T Inc. helped the National Security Agency spy on Americans by providing access to customers' phone calls.

U.S. District Judge Vaughn R. Walker said at a hearing in San Francisco that the documents may contain AT&T trade secrets. The judge also ruled against an AT&T request to have the privacy group, the Electronic Frontier Foundation, return the documents to the company on the grounds that they were stolen.

The case has helped put AT&T, the largest U.S. telephone company, at the center of the controversy over the NSA domestic surveillance program. Even if the documents remain secret and the suit is thrown out, the case ties AT&T to a program that has troubled politicians and privacy groups, said Steven Aftergood, director of the Project on Government Secrecy.

"It's the worst advertising they can have," said Aftergood, a senior research analyst at the Federation of American Scientists. "It definitely puts them in a tough position."

The documents at issue in the case came from Mark Klein, a retired AT&T technician, who said in April that cables and equipment installed at an AT&T office in San Francisco in 2003 for the NSA "were tapping into" circuits carrying customers' dial-in services. He supplied documents to EFF to support his assertions, which were filed under seal.

Walker declined to return the documents to AT&T, saying that there was a possibility the documents were obtained "innocently" and that they have been "treated with a degree of discretion" by the San Francisco-based EFF.

The information will "remain under seal" as AT&T and the EFF "work out the terms of a protective order concerning the documents," Walker said.

EFF legal director Cindy Cohn said in an interview that the case concerns customers' Internet and phone records, and, according to the information provided by Klein, AT&T's "real-time diversion of customer Internet data."

The Justice Department has asked Walker to dismiss the case because it could compromise national security. Such requests are rarely rejected, said William Weaver, a law professor at the University of Texas at El Paso, and author of a book about law and presidential secrecy.

"The case is going away. Courts almost never challenge the government on this," Weaver said. "It is the most deferred-to principle in law and a judge will not touch it."

San Antonio-based AT&T has argued that the Klein documents contain technical information that may allow hackers to break into AT&T systems and steal customer information. At today's hearing, David Anderson, a lawyer for AT&T, told Walker he had the authority to order the EFF to return the documents.

AT&T also has sought to have the case dismissed, arguing the EFF doesn't have the right to bring the case. Hearings on the dismissal requests are scheduled for June 23.

Lawmakers from both political parties have vowed to demand more details about the surveillance program after USA Today reported May 11 that AT&T, BellSouth Corp. and Verizon Communications Inc. secretly provided phone records of millions of Americans to the NSA, which has compiled a massive database to detect patterns related to terrorist activity.

BellSouth and Verizon have denied providing customer call records to the NSA.

© 2006 The Washington Post Company