July 26, 2006

Yes, But No [7:42 am]

You win some, you lose some: Judge dismisses phone records lawsuit - pdf

“The court is persuaded that requiring AT&T to confirm or deny whether it has disclosed large quantities of telephone records to the federal government could give adversaries of this country valuable insight into the government’s intelligence activities,” U.S. District Judge Matthew F. Kennelly said.

A number of such lawsuits have been filed around the country in the wake of news media reports that AT&T and other phone companies had turned records over to the National Security Administration, which specializes in communications intercepts.

Kennelly’s ruling was in sharp contrast to last week’s decision from U.S. District Judge Vaughn Walker of San Francisco, who said media reports of the program were so widespread there was no danger of spilling secrets.

The NYTimes article, Judge Rejects Customer Suit Over Records From AT&T, offers up this thought:

The ruling is at first blush at odds with a decision last week by a federal judge in San Francisco. That judge, Vaughn R. Walker, allowed a similar suit against AT&T to proceed notwithstanding the state secrets privilege.

But the two decisions can be reconciled, Judge Kennelly wrote. The Chicago case concerns records of phone calls, including when they were placed, how long they lasted and the phone numbers involved. The San Francisco case, by contrast, mainly concerns an N.S.A. program aimed not at a vast sweep of customers’ records but at the contents of a more limited number of communications.

Because the Bush administration has confirmed the existence of such targeted wiretapping, the San Francisco suit could proceed without running afoul of the state secrets privilege, Judge Walker ruled last week. ‘‘The government has opened the door for judicial inquiry,” he wrote, “by publicly confirming and denying material information about its monitoring of communications content.”

In his decision yesterday, Judge Kennelly said there had been no comparable confirmation by the government or AT&T of “the existence or nonexistence of AT&T’s claimed record turnover.” He refused to rely on news accounts of the program as proof of its existence and noted that “no executive branch official has officially confirmed or denied the existence of any program to obtain large quantities of customer telephone records.”

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