30 September 2006

EFF responded to a Cryptome email today (Cindy Cohn is lead counsel in EFF's class-action suit against ATT for helping NSA's illegal domestic spying:

From: Cindy Cohn <cindy[at]eff.org>
To: John Young <jya[at]pipeline.com>

> What can you say for publication about the news
> blackout of the ATT cases? No filings, no press releases,
> nada.

We've been stayed by the District Court until yesterday, so we couldn't make any filings. Our judge stayed the case for two basic reasons:

1) because all of the cases have been transfered to him and it didn't make much sense to move forward on our case until they all get there, and

2) because the government has asked the 9th Circuit to review his first ruling (we didn't oppose this -- I'd like to get to the Supreme Court ASAP) and the 9th Cir hasn't decided whether to allow it or not yet.

While we argued against the stay, it was a pretty rational path for Judge Walker to choose. The 9th Circuit delay may be because of the possibility of legislation -- we'll have to go back to the lower court if the law changes -- or it may just be the court's processes creaking along as normal.

> Even as loss of privacy hell has happened in DC during
> the disappearance of customary hell raising by EFF -- which
> is very provocative.

We've tried to raise hell all other ways on the proposed legislation. We've had it on our front page and been sending out action alerts nearly constantly the past few weeks as this has played out. But you're right, without a lawsuit or independent media interest so that they call us and write stories about it, we have a hard time making the kind of noise we'd like.

> Was the consolidation of NSA cases a ploy by the feds to
> shut up the opposition until the legislation was passed?

The telcos did the consolidation, not the govt (it's not known how much they work together, of course). The telcos have independent reasons for wanting consolidation as well as those they share with the govt. They have to win every case and we only have to win one -- so transfering them to one court makes sense as a strategy matter. 

They also had a pretty legitimate reason too.  Consolidation is what the courts do when multiple cases will require the same basic evidence witnesses, etc., to create basic efficiency.  For instance, the same person who testifies about how the AT&T network is structured (so that we can prove how many people's messages went through a particular facility) shouldn't have to give the same explanation to the over 40 cases pending so far across the country. 

We opposed the transfers -- and said secondarily that if they were going to be transferred they should go to Walker (which we won) -- but it was always an uphill battle.

> Odd that nobody is reporting on the lack of reporting when
> there was a steady stream before consolidation.

I agree. And I think the reporting on the wiretapping law has been pretty lame when it has happened most of the time. The wiretapping laws as proposed made the Patriot Act look like small potatoes, but the coverage has been all about the horse race in Congress and not about what's in the bill -- or has just parroted what the bill's sponsors say about it rather than folks who have actually read it and know how it will really work.  And most of the coverage hasn't mentioned the big outcry by the civlib community except in passing.

********************************************************

Cindy Cohn ---- Cindy[at]eff.org
Legal Director ---- www.eff.org
Electronic Frontier Foundation
454 Shotwell Street
San Francisco, CA 94110
(415) 436-9333 x108
(415) 436-9993 (fax)