The Electronic Frontier Foundation (EFF) is claiming a victory after a California judge lifted the stay of discovery on a lawsuit against the NSA. The case was first filed by the EFF in 2008 on behalf of AT&T customers, after AT&T technician Mark Klein revealed close cooperation between the NSA and AT&T to spy on telephone communications. Since the case was filed, leaks by whistleblowers have provided further evidence of collaboration between AT&T and the NSA.
When the case was first filed, the government claimed state secrets privilege to shield itself from discovery and liability. The government argued that the case should simply dismissed, and the judge presiding agreed. The EFF appealed, and the Ninth Circuit eventually overturned the dismissal and allowed the case to proceed in the district court. Even as the case was allowed to proceed, the EFF was still held back in this case by a stay of discovery that was ordered by the judge. With the stay in place, the EFF had no way of obtaining documents or testimony from the NSA about how their surveillance program operated.
After considering arguments from both sides, the judge has decided to lift the stay of discovery. However, the order comes with a caveat and states, “The Court notes that any disputed materials that Defendants contend may potentially run the risk of impermissible disclosure of state secret information may be disclosed ex parte for in camera review.” In other words, if the NSA believes they should not disclose some information to the plaintiffs as part of the discovery process, due to national security reasons for example, then they will instead be required to share it with the judge, who will determine if it should be revealed to the plaintiffs or not.
The EFF is considering this a big win. Although the case is far from settled, just getting a look into the NSA’s operations through the discovery process will be a huge step forward for transparency. The EFF’s blog post on the matter concludes, “This is an important step forward to lifting the cloak of secrecy that has thus far shielded the NSA from judicial scrutiny, and EFF looks forward to finally getting to the nuts and bolts of this extraordinarily important lawsuit.”
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