What's secret about the AT&T and NSA?

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The EFF is suing AT&T claiming that AT&T violated customer privacy by en masse diverting their traffic to the NSA. Now the US Government intends to interrvene in the case, asserting the state security privilege. Their claim:
The United States cannot disclose any national security information that may be at issue in this case. However, the fact that the United States will assert the state secrets privilege should not be construed as a confirmation or denial of any of Plaintiffs intervening allegations, either about AT&T or the alleged surveillance activities. When allegations are made about purported classified government activities or relationships, regardless of whether those allegations are accurate, the existence or non-existence of the activity or relationship is potentially a state secret. Therefore, the assertion of the state secrets privilege, as a general matter, does not mean that any particular allegation is true but is a reflection of the subject matter at issue.

The United States is preparing to submit its state secrets privilege assertion, motion to intervene, and motion to dismiss by May 12, 2006, prior to the scheduling conference set for May 17, 2006, and in advance of the dates on which Defendants response to Plaintiffs pending motion for a preliminary injunction is due (May 18, 2006) and scheduled to be heard (June 21, 2006). See Order dated April 26, 2006 (Docket No. 78). Counsel for the United States will attend the May 17 scheduling conference should the Court wish to address the governments participation in this case.

I can't speak to the legal issue here, but let's just look at the issue from a practical perspective. The first thing to realize is that the details of the program aren't important here. The important question is whether AT&T is diverting a feed of their traffic to NSA. We know this is technically possible--indeed it's straightforward--so there's no need for NSA to reveal any of their technical capabilities in order to address the issue. So, the only secret is whether the program actually exists.

Let's do the case analysis here: there are two possibilities:

  1. AT&T is doing substantially what the EFF claims they are.
  2. AT&T isn't doing what the EFF claims they are.

Let's take each case in turn.

Case 1: AT&T is doing substantially what the EFF claims they are
At the moment, everyone pretty much assumes that this is the case. So, the effect of the case proceeding would be to confirm that, which provides only a very small amount of information. It's hard to see how such confirmation could substantially directly assist our enemies, who I imagine already behave they way they would if they were absolutely sure that NSA were snooping in this way.

On the other hand, if the case proceeds it could eventually turn out to be the case that EFF prevails and this activity could stop. Obviously you could argue that this was bad for national security, but since the precise issue at hand is whether this is acceptable behavior, it seems weird to argue that the case can't proceed because of that.

Case 2: AT&T isn't doing what the EFF claims they are
The only surprising result here would be if it turned out that AT&T wasn't actually doing what EFF claims. Arguably (and somewhat paradoxically) this could help terrorists by letting them know that they didn't have to take the precautions they are currently taking. On the other hand, it would be fairly foolish for them to assume that just because we weren't mounting this kind of surveillance now we weren't going to in the future, so a wise terrorist would continue to take precautions. So, it's not clear that discovering the secret information that the NSA wasn't actually snooping on everyone's traffic would actually damage security that much.

UPDATE: Fixed writing above. AT&T is allegedly diverting a feed of their traffic to the NSA, not to AT&T. Thanks to Richard Parker for pointing this out.

5 Comments

Presumably you meant to say "is whether AT&T is diverting a feed of their traffic to the _NSA_."

The link on "intervene" is 404.

I think your Case 1 might consider that even if AT&T is doing what the EFF claims they are doing, customer contracts may allow AT&T to do it. So the case may be dismissed purely because AT&T isn't doing anything illegal.

On the other hand, if the case proceeds it could eventually turn out to be the case that EFF prevails and this activity could stop. Obviously you could argue that this was bad for national security, but since the precise issue at hand is whether this is acceptable behavior, it seems weird to argue that the case can't proceed because of that.

Weird? How do you figure? The government absolutely does not want that issue decided — that way, it can always claim that it can do it.

You and I certainly want to see it decided (and, of course, we know how we'd like the decision to go). But it's not weird at all that the regime wants to block the case by using any excuse that it can find.

I certainly agree that it's natural for the government to make this argument--I'm just saying it's inherently bogus, seeing as it assumes its conclusion.

could someone please start the revolution now? Shoot any congress critter or fortune 500 CEO or Halliburten employee you run across. GO!

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