Julian points out an analysis by Orin Kerr of Judge Walker’s ruling that the EFF lawsuit against AT&T can go forward despite the government’s attempts to have it dismissed on national security grounds:
It’s a very long opinion, but here’s the gist of it: Judge Walker rejected DOJ’s argument that the suit had to be dismissed outright under the state secrets privilege. Walker ruled that enough of the various programs had been acknowledged by the government and AT&T that the existence of the programs wasn’t a state secret. I assume an appeal will be coming soon, but in the meantime the case will be set to go on to the discovery stage. Notably, the state secrets privilege will continue to play a key role at that stage: the gist of Walker’s opinion is that he’ll scrutinize each discovery request for privilege rather than dismiss the case outright at the beginning.
Kerr also notes this comment from the judge: “AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.” It’s in a parenthetical “note,” and so it’s just dicta, but that’s still a PR victory for EFF.
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