TELECOM Digest OnLine - Sorted: Telcos Prepare For the Worst as Wiretapo Cases Consolidate and Head

Telcos Prepare For the Worst as Wiretapo Cases Consolidate and Head

Kevin Fayle (
Thu, 17 Aug 2006 13:53:52 -0500

By Kevin Fayle in San Francisco

AT&T and other telcos had better unlock the file cabinets and brace
for the backlash because the mother lode of wiretapping cases has just
landed in unfriendly territory.

Both the Feds and the telcos earlier this month took a hit when the
Judicial Panel on Multidistrict Litigation consolidated the pretrial
proceedings of 17 different warrantless wiretapping suits that accuse
the telcos of forming uncomfortable ties with the NSA.

The Panel placed the cases under the supervision of Judge Vaughn
Walker of the District Court for the Northern District of
California. Yes, that's right, the same judge who last month denied
the government's motion to block discovery in one of the cases on
state secret grounds.

This move has huge significance, since the pretrial proceedings for
the other suits involve many of the same issues that Judge Walker has
already ruled upon. For example, Judge Walker has shown a willingness
to let discovery of corporate records proceed in a case involving
AT&T's alleged complicity in the interception of telephone calls,
so he will most likely allow additional plaintiffs to demand documents
and other evidence from telcos in similar suits.

But don't get too excited, discovery junkies.

The government brought the motion for consolidation in order to
tighten access to confidential information and prevent leaks. With 17
separate cases, the chances that confidential information will find
its way from a judge's chambers into the media are increased by a
factor of, well, 17. With only one judge involved, the chances for a
nice, juicy leak drop significantly.

Still, the government has to be smarting over this move.

The Feds had originally looked to place the cases under the auspice of
a judge in the District of Columbia. This represented a fine strategic
move, since federal decisions coming out of D.C. tend to favor the

The Panel, sensibly enough, felt that a transfer to a court that had
already seen the classified information would better serve the
consolidation motion's goal of limiting exposure to sensitive
data. They then proceeded to send the cases to a much, much less
favorable venue from the government's perspective.

The Feds should've been careful what they wished for.

And why did the Panel send the cases to the Northern District,? Well,
the Panel suggests that the California case has progressed to the most
advanced stage. There's also the fact that the California judge has
seen more confidential material since his case dealt with both
warrantless wiretaps and the release of customer data, while a similar
Illinois case dealt only with the latter.

Reading the tealeaves, you could argue that the consolidation out West
also shows that the general mood among jurists in the country is
leaning towards a full airing of the secrets behind the wiretap
programs. We like to believe this explanation, if only because it
ever-so-slightly renews our faith in the system, along with our belief
in truth, justice, beauty and the rest of it.

And in these days of domestic spying and militarism, we need all the
help we can get. ®

Kevin Fayle is an attorney, web editor and writer in San Francisco. He
keeps a close eye on IP and International Law issues.

Copyright 2006, Kevin Fayle, The Register .

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