August 14th, 2007
9th Circuit to decide whether to dismiss NSA spying case against AT&T
In 2003, Room 641A of a large telecommunications building in downtown San Francisco was filled with powerful data-mining equipment for a “special job” by the National Security Agency, according to a former AT& T technician. It was fed by fiber-optic cables that siphoned copies of e-mails and other online traffic from one of the largest Internet hubs in the United States, the former employee says in court filings.
Whether those accusations will ever be heard in a courtroom and how exactly the Bush Administration’s Terrorist Surveillance Program worked will be considered a three-judge panel Wednesday, the Washington Post reports.
What’s already clear, however, is that the NSA engaged in a “massive effort,” says the Post, to tap into the Internet backbone and go through millions of emails and communications to datamine for clues about terrorist activity.
“The scale of these deployments is . . . vastly in excess of what would be needed for any likely application or any likely combination of applications, other than surveillance,” says an affidavit filed by J. Scott Marcus, the senior Internet adviser at the Federal Communications Commission from 2001 to 2005. Marcus analyzed evidence for the plaintiffs in the case.
The Electronic Frontier Foundation charges that AT&T collaborated with the NSA to illegally track domestic and foreign communications. In another case, the al-Haramain charity says they were the focus of NSA surveillance.
But the Justice Department doesn’t want the cases heard at all, citing national security. And national security, says AT&T, prevents it from properly defending itself. The government and AT&T are asking for the cases to be dismissed on those bases. Tomorrow’s hearing will decide whether or not to dismiss.
“If the courts take the position that the state-secrets privilege prevents the case from going forward, I think effectively there’ll never be a decision about the legality of the program,” said Cindy Cohn, the Electronic Frontier Foundation’s legal director. “I think it’s tremendously important for that.”
EFF’s lawsuit against AT&T details the allegations of Mark Klein, a former AT&T employees.
The secret 24-by-48-foot room described by Klein was on the sixth floor of a building at 611 Folsom St. in San Francisco. Klein said the NSA “special project” was well known to the small community of company technicians, and he has provided internal documents to the court describing the “cuts” that were required to split Internet traffic and route a signal to the servers and other equipment in the room.
Klein said that he worked closely with the only two technicians who had been cleared to enter the room and that he entered briefly when he was invited to look at a cable problem. Access to the room was so restricted that, in 2003, employees had to wait days to fix an industrial air conditioner that was leaking water onto the floor below, Klein says.
Klein provided a detailed list of 16 communications networks and exchanges targeted in San Francisco, including MAE-West, a Verizon-owned Internet hub that is among the largest in the country. Klein also said “splitter cabinets” similar to the one on Folsom Street were installed in Seattle, San Jose, Los Angeles and San Diego.
If the evidence is to be believes, the NSA and telecoms ran a massive sureveillance operation. But, says James X. Dempsey, policy director at the Center for Democracy and Technology, “the mere fact that the capability has been built and utilized still does not answer the fundamental question — has it been exercised under constitutional parameters? That, in a way, is what these cases are trying to get to.”
Whatever the Ninth Circuit panel decides, the cases are almost certain to go to the Supreme Court.
“What the 9th Circuit says won’t be the final word,” said Orin S. Kerr, a George Washington University law professor who specializes in national security issues. “There’s going to be a long path before this is resolved.”
