Court rejects government's "state secrets" argument in AT&T case

Today Judge Vaughn Walker of the U.S. District Court of the Northern District of California ruled on the U.S. government's motions for dismissal or summary judgment in the Electronic Frontier Foundation's lawsuit against AT&T on grounds of "state secrets." The motions were denied, with the possibility of a later dismissal or summary judgment on state secrets grounds. However, the judge noted the limits of state secrets privilege with respect to the infringement of individual rights, and stated that "dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security" (p. 36 of the ruling).

The judge noted that you can't claim that something is a "state secret" if it's not secret, citing not only news stories about interception but public statements by George W. Bush and Alberto Gonzales.

Also denied were AT&T's motions for dismiss for lack of standing, for lack of plaintiff demonstration that AT&T lack's appropriate government certification for its actions (though the judge indicates he could be persuaded otherwise on this one later), due to AT&T's claim of common law immunity from civil liability for conducting government surveillance (in part because AT&T has argued that its cooperation has been voluntary, not mandatory), and due to AT&T's claim of qualified immunity.

The judge proposes appointing a qualified, appropriately security-cleared expert to assist the court in reviewing classified material and determining what may be disclosed and to whom.

The next hearing is a case management hearing on August 8.