"Klein-mas" in the NSA Litigation: the AT&T Whistleblower's Secret Documents Are Published

Readers of these posts will be familiar with Mark Klein, the retired AT&T technician turned whistleblower who provided the Electronic Frontier Foundation (EFF) with a number of documents tending to show not only that AT&T was cooperating with the illegal NSA surveillance program, but also that that program was far broader than the narrow program Alberto Gonzales has described as targeted at the international communications of terrorists.

EFF then used the documents as the basis to sue the giant telecommunications company for violating the rights of a number of its own subscribers. But until this week, Klein's documents had been seen only by the judge and the lawyers in the case, as they were filed under seal in order to allow AT&T a chance to argue that they should stay secret. AT&T did just that, claiming that the documents contained trade secrets and other information that miscreants could use to vandalize the company's networks.

Well, that all changed two days ago. Monday was "Kleinmas" in the NSA litigation, as Wired magazine decided to go public with a copy it had of a substantial excerpt of the Klein documents. (Someone--apparently not Klein himself--had provided them to Wired. The government had already announced they were not considered to contain classified information, and the fact that they were sealed in the EFF case did not bar anyone other than the parties from disclosing them.)

After all the controversy over whether they should be released, the new information in these documents is limited, given that Klein had already published a bombshell summary of their contents a few weeks ago. They do show that not just AT&T subscribers were at risk: the documents contain a list of over a dozen other telecom companies whose traffic AT&T occasionally carries ("peers") on its own lines; all of this traffic would be subject to interception. The documents also show that the lines connecting AT&T to a major West Coast internet traffic hub (one of the two biggest in the country) were also tapped. As Klein summarized it: "It's not just [AT&T] WorldNet customers who are being spied on--it's the whole Internet."

The documents also add some color about the secret room in the middle of AT&T's San Francisco switching station into which a copy of all signals coming over the fiberoptic lines is sent. Although nothing in Wired's excerpt of the documents shows that a direct line goes from the room to the NSA, a memo Klein wrote in 2004 that is included with the documents states that the room was off-limits to those without an NSA security clearance. The memo also states that the plans for the room were "drawn up by December 2002, curiously only four months after [the Defense Advance Research Projects Agency] started awarding contracts for TIA"--that is, for Admiral John Poindexter's Total Information Awareness program, a plan to spy on every American that caused such an uproar that Congress pulled its funding in 2003. We at CCR have speculated that something like TIA is what the government might have been up to--vast, untargeted surveillance, unlimited to international calls and unlinked to terrorism--since the day we filed our lawsuit against the NSA Program.

Although some experts who have seen the documents Wired published have said a room like this might be set up to allow AT&T to monitor its own network's traffic, they admit that the security clearance requirement is hard to explain away, as are Klein's earlier statements showing that an NSA official was present when the room was first set up.

What about AT&T's vehement claims that the release of the documents by the court would open their network up to hacker attacks and divulge their trade secrets to their business competitors? Wired says they showed the docs to several independent security experts who concluded that release of the documents would "pose no significant danger to AT&T"--"[f]or example, they do not reveal information that hackers" might take advantage of to attack AT&T systems--and that's why they decided to publish them.

It's not much of a stretch to think that nothing in there is a trade secret either. Perhaps the surest confirmation of this is a point the judge in the EFF case hit on last Wednesday (during a court hearing on the issue of whether the complete copy of the Klein documents filed in the court case should remain under seal). The judge wondered: If AT&T was really worried about release of the documents revealing their trade secrets to the public, why hadn't they sued Klein and tried to get a court order against him prohibiting him from doing that? They had no answer. (If the courtroom had been closed to the public last Wednesday, as AT&T had requested, we wouldn't know that they had no response.)

Like Klein, Wired deserves a lot of credit for doing what they did. They did so just a day after the administration announced a new offensive against journalists who reveal embarrassing secrets about the NSA's illegal surveillance program. Just this Sunday, Alberto Gonzales announced that he believes journalists can be criminally prosecuted under federal law for publishing classified information. (The Klein documents weren't classified, but the document filed under seal in the Oregon case against the NSA program is.) In a move designed to chill sources more than reporters, Gonzales added that he would not hesitate to look at records of calls to reporters' telephone lines to track down the source of leaks. (Glenn Greenwald, back from his book-induced sabbatical from blogging, has a nice post on this.)

What authority is our nation's top law enforcement official going to base these prosecutions on? In his words: "There are some statutes on the book which, if you read the language carefully, would seem to indicate that [criminal prosecution] is a possibility." Reading Gonzales' language carefully, it would seem he is not too confident in this conclusion. But this administration's lawyers have had no problem stretching the law to fit their needs, whether it is reading the anti-torture statutes to allow torture, or reading an authorization to use force in Afghanistan to allow domestic wiretapping. (There is a link between the two: torture-memo coauthor John Yoo apparently wrote a memo about surveillance powers days after 9/11 (according to James Risen's excellent book on the NSA program).)

The statute Gonzales is probably talking about is the Espionage Act of 1917, 18 U.S.C. § 798. As modified over the years, it criminalizes "publication" of certain classified information. But it has never been extended to journalists. With the notable exception of the AIPAC Israel lobbyists currently under indictment for Espionage Act violations, former government employees have been the overwhelming majority of targets of prosecution under the Act. The Act is worded more broadly than that, to reach "whoever" divulges the sensitive information, but for 90 years it has never been used to prosecute journalists. (Dan Schorr and Gabriel Schoenfeld document some close calls.) As Law Professor Geoff Stone points out, Congress refused to extend the Act to cover the press expressly in 1917, despite President Wilson's urging.

Suddenly, one of the most important aspects of the freedom of the press--the ability to publish things the government wants to keep secret--may rest on the outcome of a case involving two lobbyists for Israel caught up in an FBI sting, which will test how far the Act can be applied against people outside the government. Perhaps Congress, if it wants to ensure that an adversarial press keeps a close watch on the executive, might think about spending its time rewriting the Espionage Act to protect journalists instead of trying to whitewash the NSA Program.

May 24, 2006