How the NSA leaks may help EFF sue the government into defending its bulk surveillance programs

The "other shoe" in the Edward Snowden NSA leaks has been the potential effect of all these disclosures on the Electronic Frontier Foundation's efforts to force the government to account for itself in court. Since 2005 — when Mark Klein, a former AT&T worker came into EFF's offices with documentary evidence of a secret room at AT&T's Folsom Street switching center, where the NSA was effectively making a copy of all the traffic on AT&T's network without a warrant — the EFF has been trying to get the government to explain to a judge why they think this kind of bulk surveillance is legal.

But at every turn, the Bush and Obama DoJs have convinced judges that these questions can't be asked in court, let alone answered. The invocation of state secrecy has stymied all attempts to date at getting the government to square the circle on the Fourth Amendment and bulk, warrantless surveillance of every American's Internet traffic.

As Wired's David Kravets notes, judges may be a lot more skeptical about state secrecy now that this stuff just isn't much of a secret anymore:

First it was the President George W. Bush administration and then the President Barack Obama administration, which for years have been arguing in court that the state-secrets privilege shields the government from lawsuits accusing it of siphoning Americans' electronic communications to the National Security Agency without warrants.

But with the recent Spygate leaks, including one that all calling metadata of Verizon customers is being forwarded to the NSA, the government is hard-pressed to maintain that line with a straight face.

"By contrast, the recent disclosures have greatly undermined the factual and legal basis for the government defendants' separate and distinct state secrets motion," the Electronic Frontier Foundation wrote in a recent court filing.

The EFF's lawsuit, which has had a tortured history through the courts, is based in part on allegations of internal AT&T documents, first published by Wired, that outline a secret room in an AT&T San Francisco office and others which allegedly route internet traffic to the NSA.

Spygate Leaks Imperil State-Secrets Defense [David Kravets/Wired]