US: ATT: Wired News is a "Scofflaw"

Wired News is a "scofflaw" full of "hot air" and should not be heard in a class-action lawsuit accusing AT&T of violating customers' privacy by cooperating with the National Security Agency in a warrantless internet wiretap operation, the telecommunications company said in a court filing Monday.

AT&T was responding to a May 23 petition from Wired News asking to intervene in the case in order to seek the unsealing of more than 140 pages of documents submitted as evidence.

On May 22, Wired News published 30 pages of documents acquired from an anonymous source who is not a party to the case. The papers include an affidavit from whistle-blower Mark Klein and eight pages of documents stamped "AT&T Proprietary." The AT&T pages are believed to be excerpts from some of the documents filed under seal in the case, and depict a detailed scheme for capturing and analyzing data flowing through AT&T's fiber-optic backbone. Klein's accompanying statement describes the setup as part of an NSA wiretap operation in AT&T's San Francisco switching center.

The AT&T filing carefully avoids confirming that the documents originated with the company, or match the documents under seal. But it does accuse Wired News of misappropriating and "leaking" trade secrets by publishing the evidence. The telecommunications giant also accuses Wired News of violating the judge's order that the plaintiffs in the case not distribute the documents further.

Wired News' publication of the documents "was neither lawful nor innocent," AT&T wrote. "Wired (News) has leaked eight pages of what it claims are AT&T Proprietary documents -- and did so despite actual knowledge that AT&T claims its documents contain trade secrets and the court had ordered that such documents remain under seal."

U.S. District Judge Vaughn Walker previously denied AT&T's request to extend that order beyond the plaintiffs, and explicitly rejected the company's bid to extend the order to Klein, a former company technician who turned against AT&T after concluding that the company was breaking the law.

The company added the judge should reject Wired News' petition to intervene, because the judge had earlier declined to unseal the documents at the request of the Electronic Frontier Foundation, which is pressing the case against AT&T. The company argued the evidence contains technical trade secrets pertaining to the splitting of fiber-optic cables. AT&T is the industry leader in techniques for tapping fiber optics (which can be useful for legitimate network monitoring, as well as wiretapping) and uses that edge to make money, the filing claims.

In its motion, Wired News argued that the court should unseal the evidence because trade secrets are no longer protected after they have been made public, that the judge has yet to rule on whether the documents contain trade secrets, and that the public's right to know trumps AT&T's right to protect its intellectual property.

"AT&T's conclusory assertion that these documents are proprietary is unpersuasive in the context of a raging national debate regarding the apparent cooperation of the nation's largest telecommunications company in a broad domestic spying program," an attorney for Wired News wrote. "Any proprietary value that AT&T sees in technical documents describing the manner in which the lines were tapped must yield to the public's right to be informed about behavior that implicates the fundamental rights of many millions of Americans."

Wired News' motion to intervene, as well as a similar motion from print media, will be considered at the next hearing in the case, set for June 23. Also at issue that day will be the government's and AT&T's motions to dismiss the case. The Bush administration wants the lawsuit thrown out on the grounds it would reveal national security secrets. Last week, Walker examined classified papers filed by the government in support of that claim.

This week, the government gave a preview of its upcoming argument as it defended its warrantless wiretapping program in a separate lawsuit filed by the American Civil Liberties Union. In that lawsuit, the ACLU is arguing that the NSA program violates the free-speech rights of Americans, who cannot speak freely to civil rights groups and journalists for fear of covert government monitoring.

In the first hearing in that case Monday, the government told the judge that the surveillance is lawful, but "the evidence we need to demonstrate to you that it is lawful cannot be disclosed without that process itself causing grave harm to United States national security," according to The New York Times. The ACLU argued that the judge needs no extra classified evidence to find the administration's warrantless wiretapping of Americans illegal.

A similar lawsuit, brought in New York state by the Center for Constitutional Rights, has not yet had its first hearing.

• 116 Human Rights