U.S. District Judge Jeffrey White, Northern District of California. Photo: Jason Doiy/ALM

A federal judge in California has knocked out a long-running lawsuit brought on behalf of a group of AT&T customers who claimed their internet communications were swept up in the National Security Agency's surveillance dragnet.

U.S. District Judge Jeffrey White of the Northern District of California sided with government lawyers who had argued that the case originally filed in 2008 could not move forward without “grave risk to the national security.”

Granting the government's motion for summary judgment, White wrote in a public order that “the court finds that it has reached the threshold at which it can go no further.” White also issued a classified order filed under seal, which he said went into further detail on the government's national security defenses. The ruling disposes of the plaintiffs' remaining claims that the government's collection of plaintiffs' communications violated the Wiretap Act and the Stored Communications Act. White had previously dismissed the plaintiffs' constitutional claims.

The plaintiffs' description of the government's surveillance mechanism at issue in the case relied in part on the declaration of Mark Klein, a retired AT&T technician who reported that traffic from the company's internet backbone was routed to a secret room controlled by the government. White wrote Thursday that Klein's declaration and those of the plaintiffs' experts didn't support their claims of illegal government surveillance.

“The limited knowledge that Klein does possess firsthand does not support plaintiffs' contention about the actual operation of the data collection process or the alleged agency role of AT&T,” White wrote. “Klein can only speculate about what data were actually processed and by whom in the secure room and how and for what purpose, as he was never involved in its operation.”

Plainitiffs were represented in the case by San Francisco lawyer Richard Wiebe and lawyers at the Electronic Frontier Foundation.

Wiebe said Thursday that the court's decision “makes it impossible to ever litigate these mass surveillance programs against the government.” Wiebe said that plaintiffs counsel have been asking for years for an appropriate level of access to classified evidence that the judge has had access to, but have repeatedly been denied.

“Given all the things we know about those programs we have no doubt that the secret evidence shows that these programs exist in the fashion we described them,” Wiebe said.

In an emailed statement, EFF's Cindy Cohn said that the plaintiffs were disappointed the case was dismissed based on state secrecy grounds and that they intend to appeal. “The American people deserve to know whether mass surveillance is legal and constitutional,” Cohn said. “Instead of proceeding to the legal merits of the government's programs, the court deferred to the government's state secrecy arguments.”

Read White's decision:

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