Major Hearing on AT&T & Illegal Spying This Friday; Judge Previews 11 Questions
On Friday, June 23, at 9:30 a.m., a federal judge in San Francisco will hear oral arguments on the U.S. government's motion to dismiss EFF's class-action lawsuit against AT&T. Today, the court issued an order stating, "In addition to all other matters pertinent to the hearing noticed for June 23, 2006, the parties should be prepared to address the following questions" -- read them beneath the fold (order to be uploaded shortly):
1. Regardless how the court decides the government?s motion to dismiss on state secret grounds, should the court grant an interlocutory appeal of that decision pursuant to 28 USC ?1292(b)?
2. If the court denies the government?s motion to dismiss on state secret grounds and grants an interlocutory appeal, should the court stay proceedings?
3. How can the court minimize the conflict between plaintiffs? right to litigate this case and the government?s duty to protect state secrets? See Ellsberg v Mitchell, 709 F2d 51, 57 (DC Cir 1983) (?[T]he [state secret] privilege may not be used to shield any material not strictly necessary to prevent injury to national security; and, whenever possible, sensitive information must be disentangled from nonsensitive information to allow for the release of the latter.?).
4. If the court does not dismiss this case, which of plaintiffs? claims is least likely to require discovery of classified evidence?
5. If a warrant is not required for the government via AT&T to intercept plaintiffs? communications, how can the Fourth Amendment?s reasonableness requirement be adjudicated without implicating state secrets?
6. How can confirming or denying the existence of the alleged surveillance program at issue here, or AT&T?s alleged participation in that program, constitute disclosure of a state secret when the program has been so widely reported in the public sphere?
7. If the litigation discloses that AT&T received a certification from the government, the existence of this certification would evince AT&T?s involvement in some kind of surveillance program.
a. Could the difference between a possibility that AT&T is involved (based on public reports) versus a near certainty that AT&T is involved (if it received a
certification) itself be a state secret?
b. In particular, consider a terrorist who would use the communications channels that are allegedly being monitored so long as he is not certain that they are
being monitored. If this litigation reveals that AT&T has received a certification and is involved in some kind of surveillance program, might the risk to national
security of disclosure of the certification be de minimis and not outweigh plaintiffs? due process rights?
8. Which of plaintiffs? claims could survive if AT&T received a certification from the government?
9. If the court denies the government?s motion to dismiss on state secret grounds, what are the parties? positions on the possible appointment pursuant to FRE 706 of an expert to advise the court on state secret assertions with respect to particular pieces of evidence?
10. If the court decides to appoint an FRE 706 expert, what are the criteria that the court should use in making that appointment?
11. If such an expert is appointed, what responsibilities should that expert have?
Recent DeepLinks Posts
Dec 7, 2016
Dec 7, 2016
Dec 6, 2016
Dec 6, 2016
Dec 6, 2016
- Fair Use and Intellectual Property: Defending the Balance
- Free Speech
- UK Investigatory Powers Bill
- Know Your Rights
- Trade Agreements and Digital Rights
- State-Sponsored Malware
- Abortion Reporting
- Analog Hole
- Anti-Counterfeiting Trade Agreement
- Artificial Intelligence & Machine Learning
- Bloggers' Rights
- Border Searches
- Broadcast Flag
- Broadcasting Treaty
- Cell Tracking
- Coders' Rights Project
- Computer Fraud And Abuse Act Reform
- Content Blocking
- Copyright Trolls
- Council of Europe
- Cyber Security Legislation
- Defend Your Right to Repair!
- Development Agenda
- Digital Books
- Digital Radio
- Digital Video
- DMCA Rulemaking
- Do Not Track
- E-Voting Rights
- EFF Europe
- Electronic Frontier Alliance
- Encrypting the Web
- Export Controls
- FAQs for Lodsys Targets
- File Sharing
- Fixing Copyright? The 2013-2016 Copyright Review Process
- Genetic Information Privacy
- Government Hacking and Subversion of Digital Security
- Hollywood v. DVD
- How Patents Hinder Innovation (Graphic)
- International Privacy Standards
- Internet Governance Forum
- Law Enforcement Access
- Legislative Solutions for Patent Reform
- Locational Privacy
- Mandatory Data Retention
- Mandatory National IDs and Biometric Databases
- Mass Surveillance Technologies
- Medical Privacy
- Mobile devices
- National Security and Medical Information
- National Security Letters
- Net Neutrality
- No Downtime for Free Speech
- NSA Spying
- Offline : Imprisoned Bloggers and Technologists
- Online Behavioral Tracking
- Open Access
- Open Wireless
- Patent Busting Project
- Patent Trolls
- PATRIOT Act
- Pen Trap
- Policy Analysis
- Public Health Reporting and Hospital Discharge Data
- Reading Accessibility
- Real ID
- Reclaim Invention
- Search Engines
- Search Incident to Arrest
- Section 230 of the Communications Decency Act
- Shadow Regulation
- Social Networks
- SOPA/PIPA: Internet Blacklist Legislation
- Student Privacy
- Stupid Patent of the Month
- Surveillance and Human Rights
- Surveillance Drones
- Terms Of (Ab)Use
- Test Your ISP
- The "Six Strikes" Copyright Surveillance Machine
- The Global Network Initiative
- The Law and Medical Privacy
- TPP's Copyright Trap
- Trans-Pacific Partnership Agreement
- Travel Screening
- Trusted Computing
- Video Games