Civil liberties group the Electronic Freedom Foundation
(EFF) took the case against telecoms giant AT&T, alleging
that the firm collaborated with the National Security Agency in the
US to pass on email and phone call information to the NSA
illegally.
The EFF
instigated a class action lawsuit against the telephone and
internet provider in January but the US Government tried to stop
the case going to trial because it said that state secrets could be
exposed.
US District Judge Vaughn Walker said that the case must go
ahead.
"The compromise between liberty and security remains a difficult
one," he said. "But dismissing this case at the outset would
sacrifice liberty for no apparent enhancement of security."
The EFF welcomed the decision. "We are gratified that Judge
Walker rejected the Government's overbroad claims of secrecy, and
that our case on behalf of AT&T customers can go forward," said
EFF staff attorney Kevin Bankston. "Judge Walker correctly found
that the government, after having already admitted to and
extensively commented on the NSA's spying program, cannot now claim
that it is a secret and sweep AT&T's role under the rug."
Walker did recognise that the security implications of the case
were significant, and said that he intends to appoint a specialist
to the court to help make decisions on the national security
implications of the case.
"While the court has a duty to the extent possible to
disentangle sensitive information from non-sensitive information,
the court also must take special care to honour the extraordinary
security concerns raised by the government here," wrote Walker in
his judgment. "To help perform these duties, the court proposes
appointing an expert pursuant to [the Federal Rules of Evidence] to
assist the court in determining whether disclosing particular
evidence would create a 'reasonable danger' of harming national
security."
The case could be consolidated with other challenges to the
alleged spying programme. The EFF claims that information on phone
calls and emails was handed over to the authorities in
contravention of existing eavesdropping laws and the first
amendment of the US Constitution, which protects free speech. It
says it expects AT&T and the government to appeal Walker's
decision.
The case could still be moved to a secret court under a plan
unveiled last week by the government and a US senator, Arlen
Specter. The plan proposes that any legal challenges to the NSA
would be heard by the Foreign Intelligence Surveillance Act
(FISA).
The court established by that act hears arguments in secret and
only from government lawyers, the EFF said. "As Judge Walker
demonstrated today, the conventional court system is perfectly
capable of handling these cases and can do so by balancing the
public's need for transparency with proper protections for
security," said EFF staff attorney Kurt Opsahl. "Any bill that
would attempt to sweep these cases into a the secret court should
be rejected."
