A federal appeals court will hear arguments next Wednesday on whether to stop a class-action privacy suit that is based on allegations that the government and AT&T Inc. have been working together in an illegal wiretapping program.
The Electronic Frontier Foundation (EFF) brought the case in a U.S. District Court in San Francisco last year on behalf of Tash Hepting and other AT&T customers. The suit alleges AT&T cooperated with the National Security Agency to conduct surveillance of millions of customers' communications illegally, violating the customers' privacy. Another case, Al-Haramain Islamic Foundation v. Bush, has been consolidated with the Hepting suit. The Al-Haramain case involves claims the government illegally wiretapped calls between the charity and its lawyers.
The Hepting vs. AT&T case has galvanized critics who claim the U.S. government is overreaching its constitutional bounds in its fight against terrorism. Congress recently expanded the government's powers to conduct wiretapping without a warrant, which EFF said makes its case more critical than ever.
The U.S. Department of Justice (DOJ) filed a motion in the district court last year to stop the Hepting suit, saying a trial would reveal important state secrets. The judge in the U.S. District Court for the Northern District of California, Vaughn Walker, rejected that motion last July. The government immediately asked the U.S. Court of Appeals for the 9th Circuit, also in San Francisco, to halt the case.
It has taken this long for the appeals court to hear that appeal even though it was expedited, said Cindy Cohn, legal director of the EFF. The nonprofit digital rights group believes the wiretapping is continuing and wants it stopped quickly, she said.
On Wednesday, a three-judge panel at the circuit court will hear arguments on whether to halt each case. If it does so, the EFF may take the cases to the U.S. Supreme Court, Cohn said. The government could do the same if the judges reject its appeal.
The DOJ argued last year that hearing the Hepting case would mean exposing information that would help Al-Qaeda terrorists. Just confirming or denying that the alleged surveillance takes place could aid terrorists by letting them know what forms of communication are monitored and which are not, government lawyers said. But Judge Walker said too much information had already been disclosed, including by the government and AT&T, to stop the case.
EFF brought the case in January 2006 after news reports told of carriers diverting traffic from their fiber-optic lines through NSA wiretapping equipment.