Judge denies AT&T request for closed hearing

Company's trade secrets, he says, can be protected in opening hearing in lawsuit alleging AT&T illegally cooperated with NSA.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
2 min read
SAN FRANCISCO--A federal judge rejected a request from AT&T on Wednesday to kick the public out of a hearing in a lawsuit alleging the telecommunications company illegally cooperated with the National Security Agency.

AT&T had asked U.S. District Judge Vaughn Walker to bar everyone but attorneys from the courtroom, arguing that trade secrets about the inner workings of its network could be divulged.

"We have intellectual property rights in that information," said David Anderson, an attorney at Pillsbury Winthrop who is representing AT&T. "We submit that the hearing itself be held 'in camera,'" a legal term meaning in private.

But Walker rejected the request, saying that carefully dealing with questions about trade secrets in an open courtroom "is not unprecedented."

The Electronic Frontier Foundation, a digital rights group in San Francisco, filed the class action lawsuit in January that claims AT&T illegally cooperated with the Bush administration's secret eavesdropping program. EFF has obtained documents from a former AT&T employee that it believes buttresses its case, but which the telecommunications company says contain trade secrets and proprietary business information.

Both sides have been quarreling over what to do with the documents provided by former AT&T technician Mark Klein and filed under seal with the court, with EFF saying they should be made entirely public and AT&T arguing they should be returned because they contain confidential information.

Walker on Wednesday effectively split the difference, saying that he would maintain the current state of affairs for now. He also ordered EFF's attorneys not to "disclose these documents to any party," and rejected AT&T's request that Klein be muzzled, saying the company could sue him directly if it chose.

Based on the information that's been made public so far, the 100 pages or so of information in Klein's documents appear to describe a secret room established in AT&T's main switching centers through which a tremendous amount of Internet and voice traffic flows. Those secret rooms, according to Klein's attorney, give the NSA full access to the company's networks and can be found in switching centers in San Francisco, Los Angeles, Seattle and San Jose, Calif.

CNET Networks (publisher of CNET News.com), Wired News and the California First Amendment Coalition sent an attorney to the hearing on Wednesday to argue that the public should not be prevented from attending the proceedings. A letter (click for PDF) written by Roger Myers at Holme, Roberts & Owen submitted early in the day said the hearing should remain open because "the surveillance at the heart of the case presents issues of enormous public interest and importance."

A second set of media organizations including the San Jose Mercury News, the Los Angeles Times, the San Francisco Chronicle, and the Associated Press also sent an attorney--Karl Olson of Levy, Ram & Olson--to the hearing, which lasted nearly two hours.