AT&T Faces Scrutiny for NSA Wiretaps
By Justin Scheck
The Recorder
04-11-2006
Sure, it's exciting to hear Congress and the attorney general bloviate over the Bush administration's legally questionable eavesdropping program.
But a more interesting fight over the National Security Agency's warrantless wiretapping seems to be shaping up in San Francisco federal court, where a longtime Republican foe -- the class action plaintiff firm Lerach Coughlin Stoia Geller Rudman & Robbins -- is suing phone carrier AT&T for allegedly granting the government access to customers' phone and electronic communications.
The case, Hepting v. AT&T, 06-cv-00672, was filed in January, but made its first real waves on Thursday, when a retired AT&T technician alleged that the phone company lets the NSA review all its online and phone traffic, not just the relatively small number of calls the administration has admitted to monitoring.
The explosive and politically charged allegations come before Judge Vaughn Walker, a libertarian-leaning skeptic of law enforcement who has publicly feuded with Lerach firm lawyers.
As the case moves forward, the next few months should provide insight into the extent of the government's wiretaps, as well as difficult legal issues that will determine whether wiretapping may continue.
Lawyers involved in the case are now arguing over whether a trove of documents filed under seal by plaintiffs lawyers from the Lerach firm, the Electronic Frontier Foundation and a handful of other firms may be opened.
The documents have been provided over the last few weeks, and include testimony from the retired phone technician, Mark Klein, as well as an expert witness who agrees with Klein's claims.
The extent of his testimony is not clear, but in his statement on Thursday, Klein wrote of a secret room set up by the NSA to which all communications were diverted.
"Based on my understanding of the connections and equipment at issue, it appears the NSA is capable of conducting what amounts to vacuum-cleaner surveillance of all the data crossing the Internet -- whether that be peoples' e-mail, Web surfing or any other data," Klein wrote. His attorneys, Miles Ehrlich and Ismail Ramsey of Ramsey & Ehrlich in Berkeley, said Friday that they were no longer commenting on the case. They wouldn't say why.
Lerach partner Reed Kathrein and Cindy Cohn, a lawyer with the Electronic Frontier Foundation, said they haven't calculated potential monetary damages in the case.
"I haven't figured out how we're going to prove the monetary damages," Kathrein said. "It's having the ongoing irreparable harm of being eavesdropped on."
Cohn said that federal law provides statutory damages ranging from $100 to $10,000 per violation of wiretap statutes, but that she's not sure how the claim will shake out. "We haven't really done the math, because every time we do the math, the number's very, very big," she said.
Cohn and Kathrein both emphasized that the real point of the suit is to stop the eavesdropping.
Class action specialists said that given the large purported class -- it would encompass all AT&T customers -- the separation of powers issues and the fact that the eavesdropping was apparently done with government authority, it could be a hard case for plaintiffs.
"I think that there will be significant roadblocks under national security interests, as well as the Patriot Act," said Bruce Simon, a partner at the plaintiff firm Cotchett, Pitre, Simon & McCarthy.
"I think there is a separation of powers issue, and I think it's also tough to substitute the opinion of a federal judge for the debate that just occurred in Congress, extending the Patriot Act," Simon added. "It seems like a judge might not be willing to substitute his or her judgment for Congress."
But if there is a judge willing to take a risk, said other class action specialists, Walker is a prime candidate. He's known for a robust skepticism of law enforcement and standing behind controversial decisions, such as sentencing a mail thief to wear a sign proclaiming "I stole mail."
Attorneys who have appeared before Walker -- who won't talk about him on the record -- said they expect his libertarian tendencies to outweigh feelings stemming from his public feud with two partners from the Lerach firm, which was formerly known as Milberg Weiss Bershad Hynes & Lerach.
"He's libertarian first and foremost," said a securities defense lawyer. "I think the animosity is more from Milberg toward him."
AT&T's defense in the case is not entirely clear, given that lawyers for AT&T at Pillsbury Winthrop Shaw Pittman and Sidley Austin Brown & Wood referred requests for comment to a company spokesman, who did not return phone calls.
The EFF's Cohn said she's received notification that AT&T will file a motion for dismissal later this month. Kathrein said he expects the phone company to rely on the government as it argues to get the suit thrown out.
"They're going to try to bury us with state secrets so that it never gets heard before the court," he said.
Whether such an effort succeeds should become clear in coming weeks, when Walker is expected to rule on opening the sealed documents to the public.
Until then, the plaintiffs lawyers are saying that, despite the complex issues the case raises, their underlying arguments rely on the basic principle of a right to privacy.
Searches without probable cause, said San Francisco solo Richard Wiebe, who is representing plaintiffs in the suit, have long been barred.
"It's been absolutely prohibited under English and American law for the last 150 years," he said.
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