 Thank you all for coming. This is the Electronic Frontier Foundation's panel about our case against AT&T. My name is Kurt Oppsall. I'm a staff attorney with Electronic Frontier Foundation. I'm here with my colleagues, Jason Schultz and Colin and Kevin Bankston. I'm just going to give a brief introduction. Well, first of all, I'm sure some of you are familiar with us, but how many of you are EFF members? All right, thank you. Thank you very much. We appreciate your support. We're glad so many of our members come from this audience. One of the ways you can help support us is the dunk tank and it's Dunk-a-goon day. So in the outside area, you have your opportunity to dunk goons. So getting into business, as many of you may know, we have filed a lawsuit against AT&T with regard to their cooperation with the NSA warrantless wiretapping program. Some, thank you. I'm sure many of you are somewhat familiar with this. I'm going to go over some of the basics about it. So I apologize if it's not new information to all of you, but to get everybody onto the same page. So we are accusing AT&T of violating the law and the privacy of its customers by collaborating with the national security agency in a massive and illegal program to wiretapping data mine American citizens. This all first came to light back in December when the reporting from the New York Times revealed that there was a wiretapping program that was existing outside of the confines of the law. And somewhat surprisingly, the president did admit that the program existed, or at least a portion of the program existed what he called the terrorist surveillance program. Over time, some further details emerged. Other papers contributed to the reporting. It was showing that the major telecommunications companies were fighting unlimited access to the government. We were very interested in this. We conducted our own investigation. And after we conducted the investigation, we filed a lawsuit in January of this year alleging that AT&T has opened its key telecommunications facilities and database to direct access by the NSA. And thereby, they were disclosing to the government the contents of the customer's communications as well as communication records. We also alleged that AT&T has given the government access to its 300 terabyte Hawkeye database of call detail records as one of the largest databases in the world. And by doing so, by opening its network to the government by disclosing these records, AT&T has violated the privacy of its customers and the telecommunications laws and specific statutes as well as the Fourth Amendment. Our suit is not solely based on the news reports. We were also supported by the testimony in documents provided by Mark Klein, a former AT&T technician, who came forward with some key information. And then we also had an expert, J. Scott Marcus, formerly with the FCC, who looked over it and supported the evidence with his testimony. We'd really like to give a shout out to Mark Klein. He's a true hero. For coming forward, he risked the wrath of AT&T. And the government has not asserted that the Klein evidence is classified. Instead, AT&T has asserted that it is a trade secret and therefore must be kept confidential. Actually, initially, they said that it was so secret that we shouldn't be able to use it in the lawsuit. That didn't work out. Jason will be talking a little bit more about the trade secrecy aspect of it. But what that means is, for reasons that Jason will discuss, we are somewhat limited in what we can say about this evidence. We have a motion that is pending that will allow us to talk very freely about it. But there are some things that I can say and just to give you the factual overview. AT&T's internet traffic in San Francisco runs through fiber optic cables at an AT&T facility. A copy of the internet traffic that AT&T receives is diverted into a separate fiber optic cable, which is connected to equipment in a special room. This room was created under the supervision of the NSA. It contains powerful computer equipment capable of analyzing large volumes of data and connecting to separate networks. This equipment is designed to analyze the data at high speed and can be programmed to analyze it according to user-defined rules. Only personnel with NSA clearances have access to this room. AT&T's deployment is not particularly modest or limited and then apparently involves considerably more locations that would be required to catch only domestic traffic, sorry, only international traffic as the terrorist surveillance program is purportedly limited. Actually a brief word about that, since this has come up a lot in the talking points about the program, and just a note is that they define the so-called terrorist surveillance program as being a program that is limited to international communications. And then they will later say that, oh, this is a very limited program because it is limited to international communications, but by saying it is limited to its definition and then not saying there aren't other programs that really doesn't give you a whole lot more information and we believe and have alleged that there is in fact a larger surveillance program than what is called the terrorist surveillance program. And the evidence we have is consistent with a national deployment of 15 to 20 locations, possibly more, and it implies that a substantial fraction of AT&T's traffic, certainly well over half, is diverted to the NSA. At the same time, the equipment is well suited to the capture and analysis of large volumes of this for purposes of surveillance. So now we're gonna turn it over to my colleague Jason, who'll talk a little bit about trade secrecy. Thanks. So I just wanted to say a few words about this because as you can tell Kurt's being very careful with the details we describe and part of the reason for that is that right now we're lawyers, we're officers of the court. And much of the evidence that we submitted is what's called under seal, which means that it's only available to certain specified lawyers in the case and the judge. And as Kurt mentioned, there are currently, we've made a motion to the court to unseal all the information because we don't believe any trade secrets are in there. There are several media companies from newspapers and magazines and television programs who have also intervened and moved for that as well. So that's still currently pending right before the judge. We had really hoped he might rule and unseal it all so we could share it all with you today. But this case has also brought out sort of an interesting tension I just wanted to highlight and then I'll mention a little bit more about sort of the categories of things that are sort of at issue without mentioning the specifics. Which is that more and more as issues of public policy and public importance like this, surveillance things involve technology, we see more and more companies claiming trade secrets, not so much to really protect anything that's competitive but really to hide their evil doings. I mean to sort of cover up the kind of activities they're doing, saying oh well because those activities involve technology and that technology is proprietary then you can't get access to it. So this is a case that's a good example of that. And just something to sort of keep in mind whenever you see these kind of cases come around is that private companies will claim trade secrets sort of for what we think are other reasons, not just simply because they're worried their competitors are gonna steal anything. We don't feel that any of the information in the client documents or any of the other information that was submitted in the case is something that a competitor doesn't already know or is it all useful. So one of the things I just wanted to sort of highlight was that so these documents were submitted in the case and the court under these circumstances requires us to put them under a temporary seal and so that's kind of where they are now. But we did manage to negotiate some of the information to be released. The rest of it is still what's called redacted or kept under seal. But it was sort of interesting to watch the way in which AT&T would fight tooth and nail over things such as what city this all was taking place in and so they've now conceded that it's in San Francisco. But for a while they tried to hide the fact that it was even in the city of San Francisco going on or that it was in the Northern California regional area, things like that which were sort of silly given, especially that if any of you know San Francisco you can walk by the ballpark and see that it's AT&T park and that their facilities are all well situated within the city of San Francisco. But that was sort of an example of something they tried to hide. They've also tried to keep the name of the street and the address of the facility with this all happening and that still is under seal so I can't comment on what that exactly is but that's been something of a bit of contention as well. And what's sort of interesting is how can that be a trade secret? How can the address of a facility be something that's a corporate secret, especially given the sort of important public policy here for the public's right to know what's going on with your private data? Let me just check my notes here for a sec. So yeah, just sort of two other things I wanted to quickly mention. So a couple of the other things that are sort of in there that we hope we can talk about at some point are, as Kurt mentioned, the sort of type of equipment they're using, how it's configured. These details are actually in the evidence that we've submitted to the court. So it's sort of further, I mean the amount of detail we have given the court is actually a pretty fine level and pretty discreet. And so we hope at some point to share that all with you and unfortunately we can't right now but that's the things you can look for if the judge unseals the evidence. The other thing I would recommend is that we did, and we'll talk about this, a big order came out a couple of weeks ago about state secrets and other things that we'll talk about. But also in that order, the judge himself does describe sort of his take on what he thinks is going on and kind of what the allegations are. And so that can also be very informative from the judge's point of view. It's a pretty long order, 76 pages but the beginning part which has the factual part is also pretty informative. So I can answer more questions later but just so you understand why we're being a little bit hesitant that we don't wanna violate any court orders because the case is going well and we wanna keep it going that way. So turning over now to Kevin who will talk a little bit about the legality of the underlying surveillance and the upcoming bill before the Senate about surveillance. Yeah I'm gonna talk a bit about why the government is breaking the law and if you're unlucky why your provider is breaking the law if you're an AT&T customer. But first I wanted to thank DEF CON for being the one venue where I can unashamedly, nay, proudly be on a panel unshaven and a bit hungover. So I, yes, give yourselves a hand. I really can't do that anywhere else. But so the basic issue here is that wiretaps require warrants except in very limited emergency situations. This has been settled law for quite a while. In the late 60s and 1967 there were two Supreme Court decisions, the CATS case and the Burger case where the Supreme Court held that wiretaps were as invasive, nay, more invasive than physical searches of your home and they required a search warrant. Not even, and more than a search warrant what some of us in the legal community call a super warrant. A warrant that has even more procedural and substantive restrictions than the regular search warrants that they have to get to search your home. These cases were dealing with law enforcement but in the 70s in a case that we call the Keith case it has a much longer and more convoluted title but we call it the Keith case. The Supreme Court further held that even in cases involving domestic national security where the president has authorized the wiretap that is illegal that requires a warrant too. Keith combined with some other things in the 70s, particularly the church committee's investigations post Watergate into the Nixon plumbers wiretapping scheme as well as some illegal NSA programs tapping phone calls and international telegrams such as Shamrock and Minaret. As a result of those two things Congress in 1978 passed a law called the Foreign Intelligence Surveillance Act. Now before this act, the wiretap act that Congress had passed after the decisions in the 60s, the wiretap act strictly regulated wiretaps but had a fairly large carve-out for interceptions that were authorized by the president for national security purposes. After the shenanigans that the church committee uncovered they realized that was a foolish thing to do. As one of our speakers said earlier that giving the president that kind of power was like giving a teenager unlimited money, car keys, whiskey, et cetera, et cetera. I'm misquoting, I'm sorry, the hungover thing. So as a result of these abuses and as a result of these decisions Congress passed the Foreign Intelligence Surveillance Act which was meant to strictly regulate even national security-related wiretaps and it set up a foreign intelligence surveillance court which is a secret court in Washington DC which its sole job is to consider and approve secret applications for foreign intelligence surveillance by the government. These are similar to warrants. We don't think they're actually constitutionally warrants. We have a lot of problems with the FISA process but it is the law and most importantly Congress said in the law, the wiretap act and the FISA, the procedures of those two laws are the exclusive means by which the government can conduct wiretapping which meant that whatever inherent power the president had which we think is minimal to non-existent was reduced to its lowest ad. Congress, contrary to some of the talking points you may have heard, actually does have a say in what level of power the president has and when it has spoken on an issue and said don't do that, the president can't do that. So, although we don't like FISA at the very least it stuck to the basic premise of individualized warrants. You target a particular person for FISA it has to be a foreign agent and for FISA you have to have probable cause that that person is a foreign agent. So, in December we found out that the government had completely bypassed even that crappy FISA process which we hate and that even though it had been liberalized significantly by the Patriot Act and several subsequent amendments the president thought it was a better idea to completely ignore the process and establish this new NSA program completely outside the bounds of the laws that are meant to be the exclusive means for this kind of surveillance. We also found out beyond wiretapping that there was a program that involved the disclosure of everyone's phone records and we allege also internet records indicating who you communicate with and when and for how long and it was further revealed that this was done with the cooperation of your communications companies and in particular AT&T which is why we sued them. So, our claims against AT&T are several. First off there is constitutional claims primarily our fourth amendment claim that they have violated your right to be free from unreasonable searches and seizures. Now you're probably going well wait, doesn't the constitution just protect me from the government? That is true. However, in this case, AT&T is acting as an agent of the government and so we can sue them for that as well. Additionally to that we're suing under the first amendment because it's well established in the law that surveillance can chill your expressive capabilities. The big brother problem. When you are being watched, what you say changes to the detriment of all. We are also suing under those statutes that I mentioned which are the exclusive means, the wiretap act and the FISA and we are also suing under the federal statutes that regulate the disclosure of your records. They are not nearly as protective as the other statutes. However, the government does at least require, the law does at least require a subpoena for your records and certainly requires that only, the government only target individuals records. There is nothing in the law that would allow the kind of massive wholesale turning over of records that is involved here. So we think AT&T has broken the law. If you want to ask us about some of the government's justifications for this program, which we think are BS, you can ask us about those in questions because we want to have as much time for questions as possible, I'm happy to answer any of those that you like, but I'd also like to comment a bit on AT&T's defense up to this point, which is essentially a Nuremberg defense. We were following orders, which is funny because they've also admitted in court that unless there is a court order, they haven't been ordered. Anything that they did was voluntary. So they have admitted that whatever we did, and we're not saying we did anything, it was our own choice. And so the issue of whether this Nuremberg defense will stand hasn't been litigated directly, but it's worth pointing out that Judge Walker in the decision that was mentioned earlier that came out a couple of weeks ago gave a few hints about how he's thinking about this. And the most important hint was his statement that no reasonable entity in AT&T's position could have thought that the dragnet surveillance that we are alleging is legal. And we think he's perfectly correct on that point. And I think I'll stop there. Okay, so to give you somewhat of an overview, I'm gonna give you an overview of what's happened with the case so far. And one of the key issues in the case has been the state secret privilege, which Cindy will explain a little bit about shortly. So we filed the case in late January and it was filed as a class action, meaning that we are representing or we'd like to represent should the class get certified. All of AT&T's customers are domestic residential customers. And we have some representative plaintiffs for a variety of services, both their telephone service, as well as their internet service, WorldNet, because our allegations include surveillance of both telephone and internet services. The initial response to our lawsuit was to say that because of trade secrecy, saying it was improper for Mark Klein to have provided us with the evidence and that in AT&T's view, the only cure for that would be to that evidence would be stricken and never be allowed to see the light of day again. The court did not agree with that position and instead said that we could go ahead with the evidence and then reserving judgment about our position that it should be also available to the public. The second round of defense were motions to dismiss. So when you have a lawsuit filed, a number of options are available for responding. One option is to answer the complaint, admit or deny the allegations that have been brought against you and present any defenses that you may have. A second option is to move to dismiss the complaint and that is to say that even if everything in the complaint is true, you're contending to the court that the case should nevertheless not proceed. And so both AT&T and the government moved to dismiss and to drill down a little bit further, we sued both AT&T Corp and AT&T Inc. AT&T Inc. was formerly known as SBC Communications and it purchased AT&T Corp and then renamed itself AT&T Inc. So there were two motions to dismiss from the two AT&T entities and then the government intervened. We did not file the lawsuit against the government, but they intervened and also filed a motion to dismiss. And the government's motion and the key motion that we'll be talking about in more detail shortly was based on the state's secret privilege that the national security required that the case be dismissed. AT&T echoed the government's motion to some degree, but also asserted that we had failed to state a claim because even if what we had alleged was true, they were entitled to immunity because what they did was authorized by the government. And that was what Kevin was just referring to into their immunity defense. And then finally, AT&T Inc. added a new element which is to say that there was, oh, that's better, thank you. AT&T Inc. added a new element which was to assert that we lacked jurisdiction in their view. They were saying we're just a little holding company out in Texas. We don't really have much business in California. And so it would be unfair to haul them before the court. So these motions came to decision. We had the hearing last month on June, about a month before last June 23rd, decision July 20th, and the court denied the motions to dismiss the both. And we were very delighted with that decision. It, of course, was appealed. Both AT&T and the government filed petitions with the Ninth Circuit to appeal the, denial of the motion to dismiss. And then in addition, they are asking for a stay. That the case not go forward while the appeal is pending. This is a very important issue because it sets the status quo. Appeals can take years if the whole matter is stayed while the appeal is pending. Then that will significantly delay the time when the millions of people who are being surveilled on an ongoing basis can get justice and relief. Where will be a case management conference, the next hearing, and this will be on Tuesday, where we will deal with a variety of issues, but most importantly, the stay. Okay, so now to give you a brief overview of the state's secret privilege, Cindy. Hi, everybody. So when we filed this case, pundits across the country, across the world, and several of whom are sitting in this room right now said, oh, GZFF, you're just gonna lose. You're just gonna lose. And the reason you're gonna lose is the government has this secret weapon. The secret weapon is called the state's secrets privilege. And whenever they pull out the secret weapon, courts flail in fear and drop the case and the president gets to do what he wants. So EFF, once again, you're chasing, you're running after windmills here. But we actually took a look at the state's secrets privilege unlike some of the people who are commenting on it. And we thought that actually we had a path through it. And we had a pretty good path through it. And so we said, don't pay any attention to the pundits. Let's take our shot and do the best job we can. But it was clear to us that despite the fact that we thought we had a way through it, the state's secrets privilege is the government's secret weapon and it is the hardest thing we had to get over. As Kevin has laid out the law for you, you can see that it's pretty clear that if we're right about what happened here, there's a violation of law and there's a violation of constitution. That's the easy part of the case in some ways because it's just dead certain that the telephone companies have an obligation to you to not turn your information over to the government unless specific requirements are met. And if we're right about what happened here, those requirements were not even waved at us. They went by them. But the secret weapon, the state's secrets privilege is the thing that we felt was the biggest hurdle for us in moving forward. And I wanted to talk a little bit about it because I think that it is something that's gonna come up again in the case and I'll explain why. The state's secrets privilege is actually pretty old. In Judge Walker's opinion, he actually points out that it was first raised in Aaron Burr's treason trial right at the founding of the thing. And in that particular trial, I didn't know this. The judge taught me this in the decision. The court actually allowed the information to be handed over despite the claim of state secrets. So the very first time it was raised, it appears that it didn't actually result in the immediate dismissal of the case. It's been raised in a number of cases over the years involving secret contracts. So if you're a spy working for the CIA and you claim that you've been unfairly treated, but in order to explain why you're unfairly treated, you have to talk about what is actually, you do for a living, the courts have said no, that would require the revealing of state secrets. It's been raised in cases where there were accidents. The first, I think, modern case on the state secrets privilege involved a plane crash of a military plane and the claim by the government that to explain what happened in this crash would reveal military secrets. It's actually since more recently been revealed that people actually looked at the evidence about what happened in the plane crash indicated that the state secrets, there's no state secrets there, and so it was a ruse even then. I don't know this personally, I've just read what I see in the papers about this. So it's been used and to confirm the targets of spying, whether you're the target of a specific target of spying, it's been used for this. But in most of these cases, and in the clear case law in this, there is a rule that the government should not invoke the state secrets privilege lightly and that the court has to actually take a hard look at trying to disentangle any secret evidence from non-secret evidence and to make an honest view to see if the case could actually go forward without the secret evidence and that's the piece of it that we really harped on in this particular instance. To make our claims under the law, we only have to prove that AT&T is giving this information to the government without the proper securities. We don't actually have to prove what the government's doing with it. While I'd like to know, I suspect everybody would like to know what it is the government's doing with that data after it gets its hands on it. That's not where the violation occurs in terms of AT&T's liability here. What AT&T is forbidden to do is give this information to the government in the first instance. What the government does afterwards isn't particularly relevant to whether AT&T is liable or not. It may be interesting, but it's not really legally relevant. And that's the path that we tried to drive, we tried to give to the judge in order to go forward. And here in this case, the judge ultimately agreed with us that the case didn't have to be dismissed at the outset on the grounds of the state secret privilege. And he had a somewhat interesting analysis about why. He basically said, this isn't a secret contract and this isn't about the targets of surveillance, the specific targets, because if we're right, everybody's being surveilled. We don't need to know who their targets are. Because all we need to know is that they're handing everybody stuff over. And he said, the government has actually disclosed that it's doing some of the surveillance without a warrant. It's disclosed the terrorist surveillance program, and what it says is very narrow and it's limited in what it said. But basically the judge says, you know the government's opened the door here by opening the door and saying that this is, they are doing some of this warrantless wiretapping. They've brought this into the public's awareness and therefore they can't just open the door and for the things that benefit them and not open the door for the rest of it. And that was his basic analysis. He also pointed out that while AT&T basically says, of course we help out law enforcement when we think it's legal. And we always, you know, we protect your privacy except when we help out law enforcement and it's in the law. It's pretty much what they've said consistently. But what the judge pointed out, and I think it's dead obvious, is that the government couldn't engage in the, even the terrorist surveillance program that it admits without the help of the telephone communications companies. He said that's just dead, honest, the way it has to be. He pointed out that there are 73 million households served by AT&T in 46 of our 50 states. And he said it's just no secret that the government needs AT&T to do what is admitted that it's doing, the more narrow terrorist surveillance program. And he said, I'm not gonna abdicate my duty as a court to consider a case brought before me based upon a situation in which the government has certainly admitted that it's doing something that is legally suspect and just hasn't admitted the rest yet. And he said the compromise between liberty and security is a difficult one, but dismissing the case at the outset would sacrifice liberty for no apparent enhancement of security. That's probably my favorite quote of the year. So contrary to what the pundits said, the government pulled out its secret weapon and the court didn't duck. The court said no. This is people's constitutional rights at stake. This is the foundation of our system. The idea that the courts are empowered to consider the constitutionality of government actions is one of the core founding principles of our country. And I'm not gonna duck and I'm not gonna blink. And we're gonna take this case and we're gonna decide it. Now, he didn't say that he was gonna decide it all the way, that the state secrets privilege wasn't gonna come up again. The path that we gave him was a little more narrow than that. What we said to him is that you're supposed to try to disentangle, there may be some secret stuff here, but you need to try to disentangle the secret stuff from the non-secret stuff and see if we can go forward with just the non-secret stuff. And that's the challenge that we gave him and that's the challenge that he took up. So you're gonna be hearing from the state secrets privilege again as the case goes forward because with each piece of evidence, you can bet the government's gonna say, well, that thing implicates state secrets and that thing implicates state secrets and that thing implicates state secrets. And we're gonna have this with a little mini version of this battle as each step of the way. But it's a huge step forward to get this case justiciable in the first instance. It's a big victory. And Judge von Walker is not a liberal guy. He's a straight ahead, he's a judge who's been on the bench for a long time and he's really to be commended for not docking because I think the easy road for him certainly would have been. There's also a single piece of evidence that has been the focus of some of this and this is the question about whether AT&T received a piece of paper of any form before it handed this in. This piece of paper gets called a certification in some of the statutes and so we've kind of called it that in the context of the case. And the judge actually took on this question of whether we get to see any piece of paper that AT&T had that simply just is the, doesn't say what the government's gonna do with it but just says, hey AT&T, please give us this information or AT&T, we order you to give this information or AT&T, how'd you like to give us this information? We don't know what this paper says or whether there is even one at all. Some of the news reports indicate that maybe this was done without any piece of paper, we don't know. But what we said to the judge is this, whether there's a piece of paper or not from the government is an important piece here in terms of AT&T's liability and their defenses and also just, that's one of the pieces that is useful to us to figure out whether how to begin to attack this. We think that even if there is a piece of paper it doesn't mean that AT&T is home free, not even close. And we have all sorts of arguments about why the piece of paper, there is no piece of paper that could justify what's been going on here for the last four years. But it's a threshold thing, you know, you argue it one way if there's a piece of paper about why the paper doesn't do it, you argue it another way if there is no piece of paper. And so it's an important piece of evidence if it exists. The judge actually went forward and analyzed whether we get the piece of paper. And here's where he did somewhat of a split decision. The judge said because the government has admitted that they're doing wiretapping under the terrorist surveillance program, getting the content of messages, we're gonna let you get any certification that might exist for the content. But the government hasn't admitted or denied publicly whether it's getting the stored records, the stuff that's in the Hawkeye database. So I'm not gonna let plaintiffs yet get any piece of paper having to do with the stored records. Time may go on, the government may admit something, the telcos may admit something, and there may be a basis on which we can get that certification. But I'm gonna put you on hold for that one for now. But let's go forward with the content one and see where we go. So it's a bit of a split decision. We're not very happy about the second part of it about the stored records. And we will continue to raise this issue. You will hear as you see the case go forward, us continuing to raise it. But the judge kind of put the two pieces of the case on different tracks. He didn't dismiss the second part, but he put it a bit in the deep freeze until we've got some more evidence. And specifically said the evidence that he thinks is important is whether the government's admitted it or the telcos have admitted it. So that's what's going on in terms of the state secrets analysis. And that brings us to, as many people probably know, there was a judge in Chicago, judge named Cannelly, who recently considered a case that was brought by the ACLU against AT&T. Judge Cannelly dismissed the case on the state secrets privilege. But if you actually read the two opinions, they are somewhat consistent. And I don't like what Judge Cannelly did, but what Judge Cannelly only had half the case in front of him. He didn't have the content part. He only had the stored records part. And what he said was, as to the stored records, there's been no admission or denial by the government or AT&T on those. So you can't go forward with that piece of the case yet. But he invited the parties specifically, and actually I think about three or four times, and it was kind of begging for it, that they amend their complaint, add in the content part, add in a couple other things that he thought were missing. It was a much more narrow case than ours, which kind of was the whole McGillah. And he said, come back to me and let me think about it in the context of the whole thing. Just on the stored records alone, I'm gonna dismiss your case. But come back to me again. And the ACLU, which is handling that case in Chicago, it's actually the plaintiff in that case is Studs Turkel, who some of you may have heard of, he's a somewhat famous journalist. He invited the Turkel plaintiffs to amend, and they've taken him up on the challenge, and they've amended the case. They've got the whole case now. It's really a closer to a mirror case of ours. And they're resubmitting it to the judge. So I think we may see Judge Cannelly revive that case as a result of that. Boy, this is gone. I'm sorry, it went on a little longer. So there's a couple things that you should watch for. And the most important one though I want Kevin to talk about, which is while we're doing really well in the courts right now, we've got a long road ahead of us. Congress is threatening to come in and stomp all over us. And I'd like Kevin to talk about that because that's where you can really help us. Hello again. I also just wanted to point out another one of the money quotes from the decision, which was the court said, if the government's telling the truth, and this is actually a narrow program, then confirming that will not harm national security in any way. If the government is lying, and it's what we are alleging, the state's secrets privilege cannot be used to cover up their misdeeds. And I think that is a critical conclusion in that case. But you can thank Von Walker for that. But we just wanted to close with a quick pointer to a really disturbing bill that's in Congress right now. It's being sponsored by Arlen Specter, head of the Judiciary Committee. It's in the committee right now. It has a lot of bad things about it. And I'll talk to you about all of them if you want to afterwards, or you can go to our website to find out. But the one that's most important in the context of this discussion is that it would take all current legal challenges against the NSA or the telecoms that are cooperating with the NSA, take them out of the regular court system and shuffle them into the FISA court. The secret court in Washington, which it's only job for the past 30 years has been to approve secret applications for surveillance. It is the one court most likely to ratify what the president is doing. It is a real threat to our case. The changes it makes to the law generally are a real threat to your liberties and essentially give the government the president a blank check or at least a very large check in terms of his authority. It would back away from the very strong statement against presidential authority that FISA represented in the past. So if you take one action item out of this talk, it is to go to action.eff.org so you can call your senator and say how much you dislike the specter chainy compromise because it is not a compromise in the least. It is a capitulation and it would be a very sad handover of power by Congress. I think on that note, we're probably ready for questions. Yes, we can take some questions. We have about 20 minutes remaining. We just come and line up in front of the microphone there and we'd be glad to talk to you. Hi, is there any evidence that any of the other telcos are doing similar things? Cause obviously AT&T doesn't handle everybody's calls. So has there been anything about that? There have been some news reports regarding other telecommunications providers. Many of the news reports have spoken about major providers without specifying. A few have actually named names. Most prominently, in May, the USA Today had an article which named a lot of names, AT&T, Verizon, Bell South as being participants in the stored records aspect of the program. And they also mentioned Quest as being asked to be a participant in the program and then Quest stood up, demanded that I get a court order or a certification before they would proceed. The government refused to provide them with legal process and so Quest said no. We really appreciate Quest taking that step. Since that article came out, Verizon has said that up until a couple of months ago, they certainly weren't doing it and they can't talk about what's going on more than that and interestingly, they just purchased MCI a couple months ago. Bell South has had a more aggressive denial of the story. However, their denial is that they don't have a contract with the NSA, they're not providing it directly. It does leave open the possibility that if the information is provided to a third party that subsequently places it in the hands of the government, I've not seen them deny that possibility. I'd also add that on our page about the NSA program, we have quotes and links from most, if not all, the major stories with new information, including that story about the call detail records. There's also another earlier USA Today story about companies participating in the interception program which did include AT&T and Sprint and I forget who else. But an important point to make is that even if your provider hasn't been named yet, it's possible they're cooperating and even if they are not, so long as the NSA is compromised in the networks of the largest providers which often transit the communications of other providers, then you are at risk and I think the upshot is that pretty much all of us are having at least a significant portion of our communications intercepted. Yet another argument for encryption just in case you needed one. To follow up on that, Quest was also through a part of a big SEC investigation and other companies that did cooperate with the government that were even more corrupt than Quest like Global Crossing were not part of this SEC investigation. And I was curious, something that's really important to me is what incentives are the government giving or disincentives that causes AT&T to go ahead and do this? I mean, were they getting money for this? Were they saying that if you don't do this, we'll investigate you with the SEC, or what was the story? We of course don't know what secret incentives were provided but there are some pretty straightforward ones that you can look at is that AT&T was in a process of doing a variety of mergers, something that makes them very beholden to the Department of Justice who has to approve those mergers. The AT&T Corp and SBC merger, there's now actually the Bell South merger which also needs to get governmental approval. AT&T has a lot of government contracts that are quite valuable and generally has to be before and beholden to the FCC a variety of levels. So it puts a lot of pressure on the telecommunications companies and that's why it was just a remarkable thing for Quest to stand up and we only wish that more had that courage. On the other hand, in the federal court hearing, the representative, the lawyer for AT&T said, we could say no. We didn't have to say yes. When we're not saying whether we said yes or no, we don't even mean that but theoretically in some alternate universe, we could say no and I found that to be kind of interesting as a strategic decision for them to make because then I think that they have taken on responsibility for what happened here and they aren't just saying, well, we didn't have any choice because otherwise they had guns to the secretary's heads or something like that. They've said that they had the choice and I think that's gonna be an interesting admission as we move forward to see whether they try to move away from it or what that means for them because it really does put them on the hook. It makes them responsible for their actions in a way that makes it easier for us. How many of you have had your biggest client come and ask you to do something ridiculous and illegal? Yeah, the U.S. government is AT&T's single largest client. The economic incentives are fairly clear. Why is it that EFF didn't go against all the telecoms? Were they not similarly situated? Was it a resource issue? Is there a statute of limitations that will run out or can your precedent when you get a precedent be used against these other telecoms? And as a separate question, what are the implications of AT&T changing its privacy policy or putting a provision in its contracts with its subscribers that have them waived lawsuits for this? Is it legal to have the customers waive lawsuits or will there always be a cause of action regardless of what the customer signs? Thank you. Tani, you wanna take the first part, I'll take the second. The first question about why didn't we see all the telecoms, it's kind of a mix of things. One is we had the best evidence about AT&T. We had Mark Klein, Mark Klein didn't work for Verizon, he worked for AT&T, so we had actually specific, powerful factual evidence about one telecom and we wanted to lead with the strongest case possible. We also had more specific evidence about, we had more news reports, I mean we filed in January before the USA Today story came out in May. In January, we had news reporting, another reporting about the Hawkeye database, but we didn't have any public information yet about the others, so it was our best case and we wanted to put our best case forward. Now there are 35 cases across the country against the various telecos, I think pretty much all of them have been sued at this point. And there is a process by which all these cases are being, Verizon wanted to combine all of the cases. If they all get combined, we may end up all in one big soup anyway. Watch for that order, it should come out in the next month or so. And we argued that all the cases, if they're gonna be combined, should go to Judge Walker, the government, not surprisingly, said if all the cases are gonna be combined, they should go to our really good friends in the DC courts who we all are buddies with. And that debate may change the tenor of our case itself even further. Okay, so we only have 10 minutes left so we gotta move along quickly. Actually we have even less. He said zero, we get 10 minutes less than what you thought. Oh, never mind. Well then we'll just, if you wanna come talk to us afterwards, we'd be happy to talk to you more and we'll be at the booth. Or at the dunk tank, because they're dunking goons right now. Come on you guys, you gotta dunk some goons. Yes, please go to the dunk tank right now. DT is in the tank at the moment, Zach is up next, so please go get them wet. If you have questions we couldn't answer, we will be at our booth. And if you think what we're doing is cool, please join us. We have, EFF has, we stand on the shoulders of all the people who are willing to stand up and say I'm gonna be a member of EFF. It makes our voice much stronger, not only in Congress, but when we stand up in front of the courts and we say we actually represent, we represent the nerds, we represent the geeks, we represent the people who knows how these technologies work. And the more people we have, the stronger our voice. So if you think what we're doing is cool, please join. Thanks. Thank you for coming. Thank you all.