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Judge won't halt AT&T wiretapping lawsuit

San Francisco court says lawsuit alleging the carrier illegally allowed the U.S. government to spy on its customers can continue.

SAN FRANCISCO--A federal district judge on Friday rejected the Bush administration's request to halt a lawsuit that alleges AT&T unlawfully cooperated with a broad and unconstitutional government surveillance program.

U.S. District Judge Vaughn Walker said the lawsuit could continue while a portion of it was being appealed, despite the U.S. Justice Department's arguments that further hearings and other proceedings would consequently endanger national security.

AT&T switching<br /> center in downtown San Francisco" border="0" style="border:1px solid #000;" />
Credit: Declan McCullagh/CNET News.com
A room in this AT&T switching
center in downtown San Francisco
is alleged to be a place where the
National Security Agency taps Internet
and telephone communications.

"I do think these are matters we can proceed on," Walker said toward the end of the status conference here, which began at 11 a.m. PST and was attended by around 50 attorneys from the government, nonprofit groups, class action law firms and major telecommunications companies.

Friday's ruling represents another preliminary victory for the Electronic Frontier Foundation, which filed its lawsuit against AT&T in January. In its suit, the EFF charged that AT&T has opened its telecommunications facilities up to the National Security Agency and continues to "to assist the government in its secret surveillance of millions of ordinary Americans."

The ruling is also a win for attorneys in 47 other cases against numerous large telecommunications providers. The cases are in the process of being consolidated into one mammoth lawsuit in the northern district of California.

Last week, the Justice Department filed a 27-page request (click for PDF) saying at the least, the court should halt the AT&T case because any proceeding would "indirectly confirm or deny classified facts and cause harm to the national security."

In July, Walker rejected the Justice Department's attempt to have the suit against AT&T dismissed. That prompted federal prosecutors to appeal to the 9th Circuit a few days later. Along with AT&T, Verizon Communications, BellSouth and Comcast, they urged Walker to delay the case in front of him until the appeals courts reached a decision, which could take years, if it goes to the U.S. Supreme Court.

The "entire process is fraught with risk," a Justice Department attorney said Friday. Bruce Ericson, an attorney for AT&T at Pillsbury Winthrop Shaw Pittman, said that more proceedings would be useless because all his client could put in "a public answer" would be "a general denial."

After EFF's lawsuit was filed, reports of a secret room in an AT&T building in San Francisco surfaced and have become central to the nonprofit group's litigation.

A former AT&T employee, Mark Klein, has released documents alleging the company spliced its fiber optic cables and ran a duplicate set of cables to Room 641A at its 611 Folsom St. building. Improperly-redacted documents seen by CNET News.com show that AT&T has tried to offer benign reasons for the existence of such a room. (AT&T has publicly neither confirmed nor denied cooperating with the National Security Agency.)

A second wave of suits
Another twist at Friday's status conference was what might happen if a second wave of lawsuits is added to the ones already before Judge Walker.

A handful of state utility commissioners, including Vermont and Missouri, have tried to investigate whether the telecommunications companies they regulate have illegally cooperated with the NSA.

In September, for instance, Vermont's Public Service Board said Verizon could be ordered to disclose whether it has "provided local calling records to the NSA, whether Verizon provided information to the NSA before February 2006 and the conditions under which Verizon provides others with access to its customer records." (Click for PDF)

The Bush administration has taken legal action to halt those proceedings, once again invoking its "state secrets" authority and claiming that information harmful to national security could be disclosed.

That second wave of cases "raises the same issues," a Justice Department lawyer said Friday, arguing it provided an additional reason for delay so the court wouldn't have to hear the same issues twice.

But Walker let the cases proceed, setting a December 21 date to hear additional arguments, including one from media organizations for more openness, and a second one on January 11 to return to the question of whether to postpone proceedings during the appeal.