Judge Must Reconsider FOIA Wiretapping Case

(CN) - Public interest favors disclosing the identities of telecommunications companies and their agents who cooperated in the government's warrantless wiretapping program, the 9th Circuit ruled, but the information might be protected under national security law.

The court ordered a federal judge in San Francisco to take a closer look at whether the government must release the names and email addresses of those who helped the National Security Agency spy on millions of Americans' conversations in the wake of the Sept. 11 terrorist attacks.

After Sept. 11, 2001, President George W. Bush authorized the NSA to conduct a warrantless, electronic surveillance program on telephones throughout the country.

Telecommunications providers that agreed to cooperate were not protected under the program, and several lawsuits have since been filed claiming the program was illegal and unconstitutional.

Amid public outrage over the surveillance, media outlets publicized the "hidden role" of the providers in a political battle involving some of "Washington's most prominent lobbying and law firms," the ruling states.

The providers were accused of trying to pressure the Bush administration into quickly approving a measure that would wipe out all private suits against the cooperating companies and agents.

In April 2008, U.S. District Judge Jeffrey White ordered the director of national intelligence and the Department of Justice to quickly process a Freedom of Information Act request made by the Electronic Frontier Foundation. The foundation sought all records from September through December 2007 of conversations regarding the companies' immunity or legal responsibility.

Some information was subsequently released, but the identities of carriers and their lawyers and lobbyists were withheld.

The foundation challenged the withholding, and White ruled that "there is a strong public interest in disclosure of the identities of the individuals who contacted the government ... to protect telecommunications companies from legal liability for their role in government surveillance activities."

The three-judge panel in San Francisco agreed that disclosing the identities wasn't a "clearly unwarranted invasion of personal privacy," but said the lower court hadn't fully analyzed whether the information was protected under Exemption 3, which shields information "specifically exempted from disclosure by statute."

The government pointed to the National Security Act, which protects "intelligence sources and methods from unauthorized disclosure," and the National Security Agency Act, which prevents disclosure of information about the NSA and its employees.

The government argued that disclosure "could deter telecommunications companies from assisting the government in the future" and "provides our adversaries with valuable information about our intelligence sources, methods, and capabilities."

The 9th Circuit ordered Judge White to reconsider Exemption 3, saying the foundation had not abandoned its arguments against this exemption, as the federal judge had ruled.

The court also told White to examine more closely emails that the government claims are interagency or intra-agency communications, which would be shielded under Exemption 5.

Though the ruling upholds disclosure under the privacy exemption, the court said the order "may not necessarily result in disclosure" of names that might be protected by federal law.

Judge White must decide if the remaining exemptions apply, the court ruled.

The panel also reversed part of the privacy holding, saying email addresses were only fair game if they were needed to identify the agent.

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