Categorical Aperitif

There's a couple of interesting bits of legal news in the papers this morning. First, Judge Reggie Walton—he of Scooter Libby decision fame—has ordered five reporters to testify about who in the government leaked information to them about Dr. Stephen J. Hatfill, once the big suspect in the 2001 anthrax mailings:

The reporters — Michael Isikoff and Daniel Klaidman of Newsweek; Allan Lengel of The Washington Post; Toni Locy, formerly of USA Today; and James Stewart, formerly of CBS News — have acknowledged receiving information from the Justice Department and the F.B.I. about Dr. Hatfill, the judge, Reggie B. Walton, wrote in his decision yesterday. But they have refused to name their sources.

Judge Walton, of the Federal District Court in Washington, said Dr. Hatfill was entitled to the sources’ names because “the information sought is clearly central to his Privacy Act claims.”

“Denying civil litigants access to the identity of government officials who have allegedly leaked information to reporters would effectively leave Privacy Act violations immune from judicial condemnation,” Judge Walton wrote, “while leaving potential leakers virtually undeterred from engaging in such misbehavior.”

The reporters are not defendants in the suit but are likely to face contempt sanctions if they fail to comply with Judge Walton’s order.

Hmmm—the right of reporters to protect the anonymity of their sources vs. the duty to punish officials who abuse that anonymity by using the media to harass people extralegally: on which side lies justice? Normally, I'd have a default setting in favor of press freedom, but the recent years have provided a number of case studies in how the mainstream media functions increasingly as an arm of government power rather than a check on it. I tend to agree with the good folks at FAIR that "protecting the identities of confidential sources is a journalistic right that should be recognized by the courts, but only when it protects genuine whistle-blowers, not when it shields government wrongdoing." It'll be interesting to see what happens with this case.

Second, a three-judge panel from the Ninth Circuit is hearing arguments on the EFF case involving AT&T and that too-little-known "secret room" in San Francisco (and possibly many other secret rooms in other places) where a former AT&T technician says that the NSA installed tapping gear that could basically vacuum up a copy of everything passing through that very busy internet node.

But the lawsuit against AT&T, filed in early 2006, appears to provide the most detailed description of how the NSA gained access to a portion of this data stream, drawn from the Internet. The plaintiffs have argued in court documents that the practices used in San Francisco probably were used with telephone communications, also.

The allegations by Mark Klein, who worked for AT&T's WorldNet Service, underscore the government's dependence on major telecommunications providers to physically tap optic fibers that carry electronic signals around the globe. Some of the evidence also suggests that the NSA efforts were not limited to overseas e-mail communications and included the collection of purely domestic traffic.

The secret 24-by-48-foot room described by Klein was on the sixth floor of a building at 611 Folsom St. in San Francisco. Klein said the NSA "special project" was well known to the small community of company technicians, and he has provided internal documents to the court describing the "cuts" that were required to split Internet traffic and route a signal to the servers and other equipment in the room.

Klein said that he worked closely with the only two technicians who had been cleared to enter the room and that he entered briefly when he was invited to look at a cable problem. Access to the room was so restricted that, in 2003, employees had to wait days to fix an industrial air conditioner that was leaking water onto the floor below, Klein says.

Klein provided a detailed list of 16 communications networks and exchanges targeted in San Francisco, including MAE-West, a Verizon-owned Internet hub that is among the largest in the country. Klein also said "splitter cabinets" similar to the one on Folsom Street were installed in Seattle, San Jose, Los Angeles and San Diego.

[...]

James X. Dempsey, policy director at the Center for Democracy and Technology, said the evidence gleaned from the AT&T case appears to confirm that "there is a massive surveillance capability built into the network" by the federal government. But, Dempsey added, "the mere fact that the capability has been built and utilized still does not answer the fundamental question -- has it been exercised under constitutional parameters? That, in a way, is what these cases are trying to get to."

The Ninth is the court that the right-wingers love to hate, so if they stand up for judicial oversight of government surveillance powers, then get ready to hear about how they're terrorist-loving, God-hating, America-betraying, etc. from the usual Good Germans.