Bob Egelko, Chronicle Staff Writer
A judicial panel on Thursday ordered privacy-rights lawsuits from
around the nation, accusing telecommunications companies of
collaborating with a Bush administration electronic surveillance
program, transferred to a federal judge in San Francisco who has
already issued a key ruling against the government.
The decision by the Multi-District Litigation panel affects more than
three dozen class-action suits against the likes of AT&T and Verizon,
said lawyers for customers who claim that records of their phone calls
and e-mails were illegally turned over to the National Security
Agency.
The Bush administration and the telephone companies wanted the cases
transferred to a federal judge in Washington, D.C. The plaintiffs
preferred San Francisco, where Chief U.S. District Judge Vaughn Walker
ruled July 20 that a suit against AT&T could proceed despite the
government's claim that it would endanger national security. The
company and the government are appealing that ruling.
The panel of federal trial and appeals court judges from different
states said San Francisco was the better choice because the suit there
was filed first, has advanced the furthest and is before a judge "well
versed in the issues.'' Walker has already reviewed classified
evidence presented by the government in arguing for dismissal of the
AT&T suit, a procedure that would have to be duplicated if the cases
were sent to Washington, the panel said.
"This is not favorable to the government,'' said Carl Tobias, a
University of Richmond law professor in Virginia who has followed the
cases. He noted that Thursday's order also transferred appellate
review of the cases to the Ninth U.S. Circuit Court of Appeals, which
is generally more sympathetic to privacy claims and less deferential
to the government than its Washington counterpart.
It was not immediately clear whether the transfer order would also
apply to four separate suits filed solely against the government to
challenge the surveillance program. A ruling on the legality of the
program is pending before a federal judge in Detroit in a suit by the
American Civil Liberties Union.
Congressional intervention is also possible. Legislation by Senate
Judiciary Committee Chairman Arlen Specter, R-Pa., supported by the
administration, would allow the government to transfer all of the
cases to a court in Washington, D.C., that meets in secret and hears
arguments only from the government, mostly in cases involving spying
or terrorism.
The Justice Department did not respond to a request for comment. AT&T
and Verizon, which have been publicly noncommittal about their alleged
involvement in the program, had little to say.
"AT&T is fully committed to protecting our customers' privacy," said
spokesman Walt Sharp. "We do not comment on matters of national
security."
Verizon spokesman Robert Varettoni declined comment but cited a
statement the company issued in May, which said it had not been asked by
the National Security Agency for any customer records -- but left open
the possibility that such a request had been made to MCI, its newly
acquired long-distance subsidiary.
BellSouth, another defendant, has denied any role in the government
program.
The suits have been filed against telecommunications companies in 19
states. The first, filed by AT&T customers in San Francisco in late
January, followed a report by USA Today that the companies had given the
National Security Agency access to records of tens of millions of calls
to screen for possible terrorist contacts. The plaintiffs submitted a
statement by a former AT&T engineer who said that equipment installed in
a San Francisco office in 2003 allowed the federal agency to intercept
worldwide e-mail traffic.
President Bush acknowledged last December, in response to a New York
Times story, that he had authorized the National Security Agency
shortly after the Sept. 11, 2001, terrorist attacks to wiretap calls
between Americans and suspected terrorists abroad without the warrants
required by federal law. He claimed he had the authority as commander
in chief to override the congressional mandate for a warrant.
But Bush and his aides have refused to confirm telephone company
participation in the surveillance program and have argued that any
such disclosure would aid terrorists. Government lawyers asked Walker
and judges in at least two other cases to dismiss the lawsuits,
contending that the entire subject of each case was a state secret.
Walker, an appointee of President Bush, ruled last month that the
existence of the surveillance program and the possibility of AT&T's
participation were not state secrets, because the company's size,
history and public statements indicated that it was likely to
cooperate in such a program.
He refused to dismiss claims of illegal data-sharing despite the
absence of similar public statements, saying the plaintiffs may turn
up evidence that illuminates AT&T's role. Walker also said AT&T's
alleged "dragnet'' program, sweeping up all calls and e-mails for
relay to the National Security Agency, would violate customers' rights
regardless of whether the contents of any messages were actually
examined.
Five days later, a federal judge in Chicago dismissed another suit
against AT&T, filed by the ACLU on behalf of author Studs Terkel and
other customers. Judge Matthew Kennelly said the secrecy of the
program prevented the company from confirming or denying that it
shared records with the government, and thus made it impossible for
the customers to prove that their records were furnished illegally.
But ACLU attorney Adam Schwartz noted Thursday that Kennelly did not
dismiss the suit permanently, and instead allowed the customers to
file an amended suit that alleged their communications were illegally
intercepted -- the distinction that Walker found crucial in allowing
the San Francisco suit to proceed. With the Chicago suit now
transferred to Walker, Schwartz said he expects the case to be
revived.
E-mail Bob Egelko at begelko@sfchronicle.com
Bob Egelko (chronicle@telecom-digest.org)