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US court rejects state-secrets defense in NSA surveillance case

The EFF called the ruling a major victory in advancing privacy rights

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The U.S. government can no longer refuse to litigate wiretapping cases on the grounds that they would expose state secrets and undermine national security, a U.S. court has ruled.

The ruling concerns two cases in a series of many tied to claims that the federal government has been working with telecommunications companies such as AT&T to collect massive amounts of data about U.S. residents without a search warrant. Plaintiffs have said such searches were instituted following the Sept. 11, 2001, terror attacks in violation of privacy rights.

Similar privacy concerns have entered into the national discussion following recent leaks involving a government surveillance program known as Prism and a separate telecom metadata collection program.

Last year the U.S. Supreme Court refused to overturn legal immunity for telecom carriers that allegedly participated in a National Security Agency surveillance program over the past decade.

Monday's decision, handed down by the U.S. District Court for the Northern District of California, considered the defendants' argument that plaintiffs' claims should be dismissed on the grounds of the state secrets privilege, which permits the government to bar the disclosure of information if it presents a "reasonable danger" of exposing military matters that should not be divulged. The defendants in the case include the NSA as well as Obama and Bush administration officials. The plaintiffs are represented by the Electronic Frontier Foundation.

The ruling rejected the state-secrets argument. "Given the multiple public disclosures of information regarding the surveillance program, the court does not find that the very subject matter of the suits constitutes a state secret," Judge Jeffrey White wrote in the ruling.

Although there are elements of its surveillance programs that the government has not revealed, the voluntary disclosures made by various officials since 2005 have established that the government's terrorist surveillance program, the types of persons it has targeted, and even some of its procedures, are not state secrets, the ruling said.

"The court does not find dismissal appropriate based on the subject matter of the suits being a state secret," White wrote. However, there would be significant evidence that might be properly excluded should the case proceed, the judge said.

"If the state secrets defense applies to bar disclosure altogether of much of the evidence sought in this suit, plaintiffs may neither be able to establish standing to sue nor state a prima facie case," a case in which there is sufficient evidence to enable a verdict, the ruling said.

Cindy Cohn, legal director and general counsel for the EFF, called the ruling a tremendous victory and a courageous decision by the court, which moves the group's efforts one step closer toward establishing the government surveillance programs as unconstitutional under the First and Fourth Amendments.

The court is requiring that the parties "submit further briefing on the course of this litigation going forward," and will be conducting a case management conference next month.

Other efforts have been launched in the U.S. Congress to bring more transparency to the government's surveillance programs since the Prism leaks. One bill, the FISA Accountability and Privacy Protection Act of 2013, aims to apply greater oversight and control to government surveillance. It was introduced in June by Senator Patrick Leahy, a Vermont Democrat.

Zach Miners covers social networking, search and general technology news for IDG News Service. Follow Zach on Twitter at @zachminers. Zach's e-mail address is zach_miners@idg.com



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