AT&T's brief in the wiretapping case

AT&T has released a copy of their brief in the wiretapping case. Unfortunately, despite several well-known incidents with improper redaction, AT&T seems to have botched the job, just masking the sections with black bars, so you can cut and paste the text underneath. The redacted sections aren't really that interesting:
Plaintiffs' suggestion that they need only show that certain communications have been split off into a "secret room" strips multiple elements from the statutes on which their claims are based and glosses over numerous issues that would have to be explored if their claims were ever to be fully litigated.


Plaintiffs offer no evidence regarding what, if anything, actually happens to any data once it allegedly enters the alleged "secret room." Plaintiffs' purported expert provides merely "suggestive" configurations between unknown equipment in an AT&T facility. See Declaration of J. Scott Marcus In Support of Motion for Preliminary Injunction (Dkt. 32) ¶ 74. His strongest opinion, explicitly based "in terms of media claims" is conditioned entirely on a supposition: "if the government is in fact in communication with this infrastructure." Id. ¶ 39.


Without either confirming or denying the plaintiffs' assertions, AT&T notes that the facts recited by plaintiffs are entirely consistent with any number of legitimate Internet monitoring systems, such as those used to detect viruses and stop hackers. Although the plaintiffs ominously refer to the equipment as the "Surveillance Configuration," the same physical equipment could be utilized exclusively for other surveillance in full compliance with the terms of FISA ­ which even the plaintiffs themselves would not contend is unlawful. See id. ¶ 40 ("The SG3 Configurations could be used for a number of legitimate purposes."). The mere existence of these so-called configurations, even if plaintiffs' allegations were accurate, would not by itself be prima facie evidence of what ­ if any ­ information is intercepted or divulged or by whom. And it certainly is not prima facie evidence of any illegality. Plaintiffs fail to establish even a prima facie case that there has been an "interception" of "contents" within the meaning of 18 U.S.C. § 2510(4) & (8), whether there has been "electronic surveillance" within the meaning of 50 U.S.C. § 1801(f), and whether particular statutory exemptions do not apply, see, e.g., 18 U.S.C. § 2702(c). Certainly nothing compels the inference that the contents of communications of "millions of ordinary Americans," (Motion for Preliminary Injunction (Dkt. 30) at 11), have been divulged to the government, in contradiction of the government's statement that communications are intercepted only if the government has "a reasonable basis to conclude that one party to the communication is a member of al Qaeda," or otherwise affiliated with al Qaeda. Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Plaintiffs' Request for Judicial Notice (Attachment 2) (Dkt. 20).

It's not clear why they felt the need to redact this. Basically, it's the same point I made earlier, namely that it's not that unusual to have network interception equipment and that it could have been used for some purpose other than the one Mr. Klein claims. Anyway, AT&T claims, that you can't demonstrate that the equipment was--or was not--being used for those purposes without disclosing information the government claims is covered under the state secret doctrine. Unless Mr. Klein--or someone else--has some more convincing documents that we haven't seen yet, then that's probably true. Though, as I've argued before, any sane terrorist surely assumes that they're being wiretapped at this point, so it's not clear how the revelation of such a program harms national security--except to the extent to which that revelation might cause enough public unhappiness that it would force an end to the program. (though that doesn't seem to be the way the public is reacting). It's not entirely clear to me that this what the state secrets doctrine is intended for.