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Judge to decide on AT&T spying suit

AT&T, DOJ say companies are protected from privacy laws when working with government on national security issues.

A U.S. District Court judge must decide whether to throw out a lawsuit alleging that AT&T improperly handed over records of customer phone calls and e-mails to the federal government.

Vaughn Walker, a U.S. District Judge for the Northern District of California in San Francisco, heard arguments Friday from AT&T and the Electronic Frontier Foundation, the advocacy group that has accused the giant telecommunications company, in a lawsuit filed in January, of assisting the National Security Agency in warrantless electronic surveillance of U.S. citizens.

In a statement issued after the hearing before Walker, AT&T said that regardless of whether it worked with the government in this instance, it would be exempt from the lawsuit because Congress has provided immunity to companies that cooperate with the government on "critical national security issues." AT&T hasn't confirmed or denied working with the government.

The EFF calls the government surveillance the "largest fishing expedition ever devised" and contends that AT&T has violated the privacy of millions of Americans.

"The surveillance program demonstrates a massive disregard for every American's most basic privacy," said Robert Fram, one of the attorneys who argued before Walker on EFF's behalf. "The government has stepped in to prevent the evaluation of that program by contending that it involves 'state secrets,' without any reasonable justification. We need judicial supervision of this surveillance program so that we can have both security against terrorism and protection of civil liberties."

Last month, the Justice Department filed a motion to dismiss EFF's class action lawsuit against AT&T. The government asserts that the company is covered under the state secrets privilege outlined by the Supreme Court in 1953. Under the privilege, the government is allowed to thwart any lawsuit that might disclose military secrets.

The privilege was elaborated on by the 9th Circuit Court of Appeals in a case in which former workers at the Air Force's classified Groom Lake, Nev., facility alleged hazardous waste violations. When requested by the workers' lawyers to turn over information, the Air Force refused.

The 9th Circuit upheld a summary judgment on behalf of the Air Force, saying that once the state secrets "privilege is properly invoked and the court is satisfied as to the danger of divulging state secrets, the privilege is absolute" and the case will generally be dismissed.

CNET's Declan McCullagh contributed to this report.