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Amid the flurry of revelations about federal eavesdropping that came out of a class action against AT&T this week, one question remains: Does the National Security Agency plan to stand in the shadows? The feds so far have been content to let AT&T fight the suit, which accuses the telephone company of routing all of its customers’ audio and electronic communications to a secret NSA spying room, where the government had set up hardware that would allow it to listen in. In fact, even as AT&T fights vigorously to keep documents provided by a former company engineer out of the case, the government’s only public statement has been a one-paragraph letter sent April 4 to plaintiff lawyers at the Electronic Frontier Foundation. The letter came after Justice Department lawyers reviewed the documents provided by Mark Klein, the former AT&T employee. “The Department of Justice does not object to your filing under seal, in the above-referenced action, the three documents you provided to us,” wrote DoJ lawyer Anthony Coppolino. “Of course,” he added,” you should consult with AT&T regarding their position.” The phone company’s opinion on the documents has been anything but hazy: In court filings on Monday and Wednesday, it argued vigorously both that they should be kept under seal and that U.S. District Judge Vaughn Walker should make the plaintiff lawyers give them back to AT&T. “The documents are confidential and proprietary,” lawyers for AT&T with Pillsbury Winthrop Shaw Pittman and Sidley Austin wrote in a motion filed Monday asking for the documents back. “Disclosure of them would cause AT&T great harm and potentially jeopardize AT&T’s network, making it vulnerable to hackers and worse.” The motion goes on to say that “highly confidential information from these documents has reached the press,” and as evidence includes several news stories about Klein’s claims. “All of this is causing grave injury to AT&T and the security of its network,” the lawyers also wrote. Similar arguments were made Wednesday in papers arguing that testimony from a plaintiffs expert and Klein, as well as Klein’s documents � even if they aren’t returned to AT&T � should remain under seal. The AT&T lawyers tried to back up their claims by citing a 1978 U.S. Supreme Court opinion on Richard Nixon’s attempts to keep certain tape evidence out of the public eye. The court ruled against Nixon, though it said there were limits to what information should be public. Bruce Ericson, a Pillsbury partner representing AT&T, had little to say Wednesday about whether the government would get involved. “I don’t really know,” he said. “I can’t really say.” Nor could Reed Kathrein, the co-lead counsel for the plaintiffs and a partner at Lerach Coughlin Stoia Geller Rudman & Robbins. But Kathrein said AT&T’s strategy so far has been pretty transparent: It’s trying to keep Klein’s evidence from being admitted in the case. “I don’t think there’s much to say other than that we’re fighting it,” he said. “They want to do this so we can’t put it before the court, so this never gets heard.” None of the lawyers would comment specifically on the documents or Klein’s statement since they remain under seal. But there has been speculation that Klein � who has not been sued by AT&T, the government, or anyone else in connection with the case � could be facing legal consequences, mainly because of the armada of lawyers he’s picked up over the last week. First, Berkeley attorneys Miles Ehrlich and Ismail Ramsey � former federal prosecutors, and partners at Ramsey & Ehrlich � said last week that they were representing Klein, and put out a statement from the former engineer. In it, Klein said he witnessed the NSA operation in San Francisco in 2002 and 2003 and kept documents relating to its specifications and setup. He also said the company had similar facilities throughout the West. Shortly after issuing the statement, Ramsey and Ehrlich stopped commenting on the case. And on Tuesday, high-profile Morrison & Foerster litigators James Brosnahan and Tony West announced that they were joining Klein’s legal team. It’s not clear whether the four former prosecutors have much work to do � they won’t comment on the case � or what consequences they anticipate for Klein, from either the government or AT&T. The case is Hepting v. AT&T, 06-cv-00672.

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