Hepting v. AT&T

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Hepting v. AT&T is a United States class action lawsuit filed in January 2006 by the Electronic Frontier Foundation (EFF) against the telecom company AT&T, in which the EFF alleges that AT&T permitted and assisted the United States Government in unlawfully monitoring the communications of a large part of the USA, including AT&T customers, businesses and third parties whose communications were routed through AT&T's network, as well as Voice over IP telephone calls routed via the internet.

The case is separate from, but related to, the NSA warrantless surveillance controversy, in which the U.S. government bypassed the courts to monitor U.S. phone calls without a warrant. Hepting v. AT&T does not include the US Government as a party.

In July of 2006, the United States District Court for the Northern District of California – in which the suit was filed – rejected a U.S. government motion to dismiss the case. The motion to dismiss, which invoked the State Secrets Privilege, had argued that any court review of the alleged partnership between the federal government and AT&T would harm national security.

The case was immediately appealed to the Ninth Circuit, where it has been argued and awaits a decision.

1 Background and allegation
2 Litigation
3 Current Status
4 Related issues
5 See also
6 References
7 External links

[edit] Background and allegation

It is alleged in the lawsuit that in 2002-2003, AT&T permitted and assisted the National Security Agency (or NSA, a department of the U.S. government) to install a system in its San Francisco switching center, which was capable of monitoring billions of bits of internet traffic a second, including the playback of telephone calls routed on the internet, and thus in effect spying upon the entirety of the communication of many or all US citizens and businesses who use the internet.

A former AT&T engineer, Mark Klein, attested that a supercomputer built by Narus was installed for the purpose, and that similar systems were also installed in at least Seattle, San Jose, Los Angeles and San Diego. Wired News states Klein said he came forward "because he does not believe that the Bush administration is being truthful about the extent of its extrajudicial monitoring of Americans' communications":

"Despite what we are hearing, and considering the public track record of this administration, I simply do not believe their claims that the NSA's spying program is really limited to foreign communications or is otherwise consistent with the NSA's charter or with FISA [...] And unlike the controversy over targeted wiretaps of individuals' phone calls, this potential spying appears to be applied wholesale to all sorts of internet communications of countless citizens."

The EFF alleges in the suit that AT&T also allowed the NSA to data-mine hundreds of terabytes of client records which included detailed transaction records such as domestic numbers dialed since 2001, and all internet addresses visited, as well as other content. The EFF's attorney Kevin Bankston states:

"Our goal is to go after the people who are making the government's illegal surveillance possible [...] They could not do what they are doing without the help of companies like AT&T. We want to make it clear to AT&T that it is not in their legal or economic interests to violate the law whenever the president asks them to."

The EFF seeks injunctive relief against AT&T continuing such surveillance and damages allowed under the Foreign Intelligence Surveillance Act, the Communications Assistance for Law Enforcement Act, and other U.S. laws.

[edit] Litigation

AT&T objected to the filing of the documents supporting the case on the grounds they were trade secrets or might compromise the security of its network. The EFF speculated that the U.S. government would invoke the State Secrets Privilege to bar the entire lawsuit from being heard, but added: "If state secrecy can prevent us from preserving the rights of millions upon millions of people, then there is a profound problem with the law."

EFF's speculation proved accurate when the government indicated, in an April 28 Statement of Interest in the case, that it intended to invoke the State Secrets Privilege in a bid to dismiss the action. The Justice Department filed its motion to dismiss on May 15, 2006. On July 20, however, Chief Judge Vaughn R. Walker of the United States District Court for the Northern District of California rejected the federal motion, holding that "[t]he government has opened the door for judicial inquiry by publicly confirming and denying material information about its monitoring of communications content."

[edit] Current Status

In his decision not to dismiss the case Judge Walker certified the case for immediate appeal, and AT&T appealed. The case now sits in front of the Ninth Circuit, where it has been argued, but no decision has been released.

In the meantime, Congress is considering enacting a law which would grant retroactive immunity to telecommunications companies for past violations of FISA, which would make Hepting v. AT&T and other suits like it moot.^[1]

[edit] Related issues

The American Civil Liberties Union has also sued the NSA for its wiretapping program, as well as drawing attention to US government spying programs on "grassroots groups." See ACLU v. NSA and the web page on ACLU site.
On February 5, USA Today ran a further story that, according to seven telecommunications executives, NSA had secured the cooperation of the main telecommunications companies in charge of international phone-calls, including AT&T, MCI and Sprint, in its efforts to eavesdrop without warrants on international calls.