Law Professors Dispute "states secrets" claim in EFF's ATT case

We filed an amicus brief (.pdf) on behalf of a number of law professors arguing that the claims made against the phone company do not require disclosure of state secrets. From the summary:

Amici, law professors who specialize in electronic surveillance and constitutional law, urge this Court to protect the judicial branch’s role in overseeing electronic surveillance and to hold accountable Defendant telecommunications companies for their failure to protect their subscribers’ privacy. Federal law strictly prohibits interception of communications without a court order. It requires that telecommunications providers refuse to help the government listen in to citizens’ communications without a court’s approval. When it set up the statutory scheme, Congress recognized that telecommunications providers play a critical role in protecting subscribers’ privacy interests. In contrast to those whose houses are searched, victims of electronic surveillance rarely learn that someone has listened to their telephone conversations without authorization. For that reason, Congress tasked telecommunications providers with ensuring that any surveillance is properly authorized, and provided strict penalties for ignoring that responsibility. This case is about whether the Defendants violated their obligations under the law.

The Government asks this Court to disrupt this statutory scheme and to decline to decide whether the telecommunications companies violated the law because the case implicates state secrets. However, at least the interception claims, and perhaps all the claims, may be decided based on publicly available information. If Defendants intercepted Plaintiffs’ conversations without a court order, they violated federal electronic surveillance law. Liability attaches regardless of what Defendants did with the information afterwards. While the government’s role in these interceptions may be an important part of the public discourse about this case, the government’s actions are not implicated in the interception claims.

As we enter a digital era, more and more of citizens’ most private information passes through the hands of telecommunications companies like Defendants to whom the government and others will turn when they want information. Constitutional and federal statutory law explicitly requires the judicial branch’s engagement in that process – both to pre-approve government requests for information and to remedy situations when the government fails to obtain that approval and the telecommunications companies provide the information nonetheless.

There will be a hearing on June 23 on this issue in San Francisco. Help EFF and spread the word about the case by posting one of their banners.

You can also find more information on the case and coverage of the hearing on Friday here.