In a way, it makes sense that AT&T would be at a competitive disadvantage if information on how it lets the government eavesdrop on its customers were to become public. After all, who wouldn’t want to switch to a phone company that keeps the spooks out?
That seems to be the underpinning of AT&T’s first attempt to fend off a class action suit claiming it illegally participated in eavesdropping by the National Security Agency. The arguments came in court papers filed this week, after the federal government said there’s nothing classified in evidence compiled by the class action plaintiffs — and after the plaintiffs’ star witness, a former AT&T engineer, provided documents and testimony that the NSA set up a secret monitoring room in AT&T’s San Francisco office with equipment allowing the monitoring of all telephone and Internet communications. Those documents and testimony are filed under seal in the case, Hepting v. AT&T 06-cv-00672, before San Francisco U.S. District Judge Vaughn Walker.
In its attempts to keep those documents out of the case, AT&T turned to a new argument Tuesday: It claims the information is proprietary — trade secrets, in effect — and it wants U.S. District Judge Vaughn Walker to make plaintiff lawyers with the Electronic Frontier Foundation and Lerach Coughlin Stoia Geller Rudman & Robbins give the papers back.
The court filings over the past two days are the first drops of information to trickle out of the case since Mark Klein, the former AT&T engineer, announced last week that he witnessed the NSA operation — and kept documents relating to its specifications and setup — in 2002 and 2003; he also said the company had similar facilities throughout the West.
Since then, Klein — who is not facing any litigation himself — has surrounded himself with an armada of top-tier defense lawyers (reported here on Legal Pad). It’s not entirely clear why, but AT&T’s filings indicate that the company says he took something he shouldn’t have.
“The documents are confidential and proprietary,” lawyers for AT&T with Pillsbury Winthrop Shaw Pittman and Sidley Austin wrote in a motion filed Monday. “Disclosure of them would cause AT&T great harm and potentially jeopardize AT&T’s network, making it vulnerable to hackers and worse.” The motion goes on to say that “highly confidential information from these documents has reached the press,” and as evidence includes several news stories about Klein’s claims. “All of this is causing grave injury to AT&T and the security of its network,” the lawyers also wrote.
The company tries to bolster its argument with a 1978 U.S. Supreme Court opinion on Richard Nixon’s attempts to keep certain tape evidence out of the public eye. The court ruled against Nixon, although it said there were limits to what information should be public.
Lawyers at Pillsbury and Sidley Austin have said they’re not permitted to talk about the case. Reed Kathrein, a partner with the Lerach firm and one of the lead lawyers for plaintiffs, said he couldn’t speak about specific evidence because of the protective order in the case. “I don’t think there’s much to say other than that we’re fighting it,” he said. “They want to do this so we can’t put [the documents] before the court, so this never gets heard.”
— Justin Scheck