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Judge gives go ahead in wiretapping suit
Plaintiffs in NSA wiretapping case given OK to use AT&T documents to build their case against telecom giants.

CNN | May 18 2006

The judge hearing a case challenging the Bush administration's warrantless wiretapping program said Wednesday that the plaintiffs may keep documents AT&T says contain proprietary information for use in preparing their case, but the documents must remain under seal.

The lawsuit has been brought against the telecommunications giant by Electronic Frontier Foundation, an organization that advocates for privacy. The organization says AT&T (Research) gave phone and e-mail records to the National Security Agency without warrants, violating federal law.

EFF in its case will be allowed to use the sealed documents, U.S. District Judge Vaughn Walker said, among them a declaration from retired AT&T technician Mark Klein and several internal AT&T documents. Additionally, the judge instructed AT&T to work with EFF to find limited redactions that would allow some public disclosure.

"Our view is there is an ongoing massive violation of the law," said EFF attorney Cindy Cohen in court. "There's a massive flow of information about millions of phone calls."

AT&T had argued that the information contained in the documents was proprietary information, the intellectual property rights of the company, and it wanted the documents returned.

Walker also set a June 23 date to hear arguments from AT&T and the U.S. Department of Justice to dismiss the case on grounds of national security.

"This is all about the president's ability to protect national security," said Deputy Assistant Attorney General Carl Nichols, arguing that the president's power under the War Powers Act "trumps a private citizens right to have his or her day in court."

"It's not as if this is a new thing," he said. "The government does this from time to time."

Nichols also offered to provide the judge with classified documents supporting his argument.

The lawsuit stems from the administration's domestic surveillance program, which bypasses the courts to listen in to some of the international phone calls of those suspected of having terrorist connections.

The administration says the program is necessary and lawful under the power Congress granted to the president when it authorized him to wage war in Afghanistan against al Qaeda and the then-ruling Taliban who sheltered them.

The program was publicly disclosed in December.

Another lawsuit was filed in New York last week after USA Today published allegations of a separate program in which AT&T, BellSouth and Verizon provided the NSA with records of the billions of domestic phone calls.

The newspaper reported NSA doesn't record or listen to those conversations. Instead, it said, the agency uses the data, which includes numbers, times and locations, to look for patterns that might suggest terrorist activity.

That class action lawsuit, originally filed against Verizon, has been expanded to include the other two telecommunications companies. BellSouth and Verizon have denied cooperating with the NSA; AT&T has said it would not do so without proper legal authorization. The administration has also neither confirmed nor denied the existence of the second program.

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