9th Circuit Hears Important NSA Spying Case

Aug 15, 2007
Nicole A. Ozer

Page Media

ACLU of Northern CA

The outcome in the lawsuit Hepting v. AT&T, being heard today by the 9th U.S. Circuit Court of Appeals, will be important to the various challenges to illegal spying of Americans.

I'm attending the hearing scheduled for 2 p.m. today, after which I will provide a reaction to what occurred inside the room. (ETA 8/16/07: Read my reaction here.)

Background on the Significance of the Case:

In 2006, USA Today revealed the telecoms' participation in the illegal spying program. A number of lawsuits were filed against various telecom companies including the ACLU of Illinois lawsuit Terkel v. AT&T, and a lawsuit filed by the three California ACLU affiliates, ACLU v. AT&T and Verizon California. The ACLU of Illinois has been named co-lead counsel in the consolidated cases.

But by the time the consolidated cases came to him, Walker had already ruled on one of those cases, Hepting v. AT&T. Hepting is a class-action lawsuit brought by the Electronic Frontier Foundation that was filed soon after the The New York Times revealed the NSA's warrantless surveillance program in December 2005. That lawsuit charges that the telecom giant violated customers' Fourth Amendment rights by giving the NSA unfettered access to its communications and customer data with a warrant. Walker ruled that government could not use the state secrets privilege to block the lawsuit.>

The government has appealed that decision and today, the U.S. Court of Appeals for the 9th Circuit hears arguments. Lawyers for the Bush administration continue to claim the spying program cannot be challenged in court without violating the "state-secrets" privilege and exposing sensitive information.

The decision in Hepting will affect all of the consolidated cases now pending before Judge Walker.