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Lawsuits May Illuminate Methods of Spy Program
But the lawsuit against AT&T, filed in early 2006, appears to provide the most detailed description of how the NSA gained access to a portion of this data stream, drawn from the Internet. The plaintiffs have argued in court documents that the practices used in San Francisco probably were used with telephone communications, also.
The allegations by Mark Klein, who worked for AT&T's WorldNet Service, underscore the government's dependence on major telecommunications providers to physically tap optic fibers that carry electronic signals around the globe. Some of the evidence also suggests that the NSA efforts were not limited to overseas e-mail communications and included the collection of purely domestic traffic.
The secret 24-by-48-foot room described by Klein was on the sixth floor of a building at 611 Folsom St. in San Francisco. Klein said the NSA "special project" was well known to the small community of company technicians, and he has provided internal documents to the court describing the "cuts" that were required to split Internet traffic and route a signal to the servers and other equipment in the room.
Klein said that he worked closely with the only two technicians who had been cleared to enter the room and that he entered briefly when he was invited to look at a cable problem. Access to the room was so restricted that, in 2003, employees had to wait days to fix an industrial air conditioner that was leaking water onto the floor below, Klein says.
Klein provided a detailed list of 16 communications networks and exchanges targeted in San Francisco, including MAE-West, a Verizon-owned Internet hub that is among the largest in the country. Klein also said "splitter cabinets" similar to the one on Folsom Street were installed in Seattle, San Jose, Los Angeles and San Diego.
Marcus, the former FCC adviser, said in a legal declaration recently unsealed in the case that the operation described by Klein "is neither modest nor limited" and was far more extensive than needed if it was focused only on international communications or on tasks other than surveillance.
"I conclude that AT&T has constructed an extensive -- and expensive -- collection of infrastructure that collectively has all the capability necessary to conduct large-scale covert gathering of [Internet protocol]-based communications information, not only for communications to overseas locations, but for purely domestic communications as well," said Marcus, a veteran computer network executive who worked at GTE, Genuity and other companies before joining the FCC.
James X. Dempsey, policy director at the Center for Democracy and Technology, said the evidence gleaned from the AT&T case appears to confirm that "there is a massive surveillance capability built into the network" by the federal government. But, Dempsey added, "the mere fact that the capability has been built and utilized still does not answer the fundamental question -- has it been exercised under constitutional parameters? That, in a way, is what these cases are trying to get to."
The prospects for the plaintiffs are unclear. In July, an appeals court in Cincinnati threw out a similar challenge to the NSA wiretapping program by the American Civil Liberties Union, finding that the plaintiffs did not have standing to sue because they could not prove they had been subjected to surveillance.
Two senior Justice Department officials, who participated in a background briefing for reporters yesterday, said the administration believes it is on solid legal footing in arguing that national security mandates that the two cases cannot be pursued. "If it's not possible to litigate, then it should be dismissed," one official said.
Another recent ruling from a three-judge panel in Washington, however, rejected the Justice Department's arguments in a similar but more limited case, finding that an "all-or-nothing approach" had not been adopted by the Supreme Court or lower courts. San Francisco's 9th Circuit is well-known as the nation's most liberal appellate bench, and the three judges drawn for tomorrow's hearings were all appointed by Democratic presidents.
Most legal observers say that a final resolution is likely to come from the Supreme Court. "What the 9th Circuit says won't be the final word," said Orin S. Kerr, a George Washington University law professor who specializes in national security issues. "There's going to be a long path before this is resolved."
Staff writer Ellen Nakashima contributed to this report.