AT&T's Snark Delivered

Just between you and me, AT&T doesn't like to reach out and touch somebody.

When Wired News published documents that originated with AT&T whistleblower Mark Klein two weeks ago, AT&T did not call, write or e-mail. I mean, they got a VoIP system, a whole Internet backbone operation and I bet they know how to get a cheap long distance rate.

But still, no nothing.

So, I was happy to see that on Friday AT&T responded to the print media's request (.pdf) to intervene in the lawsuit in order to convince the judge to unseal all of the case documents, including (oh, brave naive print media!) the government's secret evidence.

Up to this point, AT&T has simply issued boilerplate quotes to the media about protecting privacy and complying with government orders only within the bounds of the law.

But on Friday, the lawyers brought the snark and the deadpan.

Some snippets:

There is no need for the Press to intervene. The Electronic Frontier Foundation, the Center for Constitutional Rights and the American Civil Liberties Union already champion its interests. The Press adds nothing to the mix. Its papers say nothing that the parties and the existing amici have not already said.

Long on platitudes and sound-bite jurisprudence, the Motion to Unseal brushes aside AT&T's legitimate interest in protecting its trade secrets and the security of its network - as if they were somehow unworthy of standing in the way of a scoop.

Standing in the way of a scoop. Whoever wrote that should be very proud, though I'm certain they get paid more per word than I do.

Over the next several weeks, the parties and amici filed no fewer than eight briefs debating whether the Sealed Documents should remain under seal. On May 17, 2006, the Court held a lengthy hearing on the Sealed Documents. An hour before the hearing began, the Press moved to have all sealed records unsealed. Counsel for the Press appeared at the May 17 hearing and attempted to argue the sealing issues. Coming even later to the party was Wired News, which appeared for the first time at the hearing, without filing a motion.

Even later to the party! BRING IT!

[O]n May 19, 2006, the Press filed the Motion to Unseal.. The Press set this motion to be heard on June 23, the time the Court set for hearing Defendants' and the government's motions to dismiss.

On May 22, 2006, proposed intervenor USA Today published copies of materials that it claimed may be the same as those at the heart of the lawsuit against AT&T. USA Today did so despite the Court's order that [a]ll papers heretofore filed or lodged under seal shall remain under seal pending further order of court.

Now, I'm a little disappointed that USA Today gets all the blame, when they merely published snippets of the documents Wired News published, but Wired News isn't a party to this motion, so I'll let it go.

Whatever else might be said about [the EFF's] arguments, they have not lacked for vigor. Nothing would be served by piling on new intervenors to argue against sealing - particularly when all they seek to do is reargue matters already decided, without even a pretense of offering a fresh point of view.

Perhaps because they have nothing new or different to say, the Press neither identifies the applicable standards for intervention, nor explains how it might satisfy those standards. (emph. added)

Without a "pretense of offering a fresh point of view" and because "they have nothing new or different to say"? That's legalese for your momma's fat.

If the Press were to be permitted to intervene, it would become a party to this case. As such, it would be expected to obey this Court's orders. That is a duty the Press seems unwilling to assume. The Court, on May 17, ordered the parties not to disclose matters under seal.

Within a week, proposed intervenor USA Today published excerpts from confidential AT&T documents that it said might be "the same as those at the heart of the lawsuit against AT&T." It did so despite knowing of this Court's order and of AT&T's contention that the Sealed Documents contain AT&T's trade secrets whose disclosure would jeopardize the security of its network.

Here the lawyers lay out a fancy and not illogical "watch what you ask for" scenario. AT&T lawyers then go on to simultaneously strive to not confirm that the documents published by Wired News overlap with the documents filed under seal, while still implying that USA Today and Wired News compromised the security of its network.

Where, as here, proposed intervenors are manifestly unwilling to abide by the Court's orders and maintain documents under seal, the Court should deny the Press's motion to intervene.

"[T]he First Amendment does not prohibit courts from incidentally enjoining speech in order to protect a legitimate property right." DVD Copy Control Ass'n, Inc. v. Bunner, 31 Cal. 4th 864, 881 (2003). [...] The Press's disregard for AT&T's property rights justifies denial of permissive intervention.

This is not technically snark, but is cleverly and humorously twisted logic. The press published what may or may not have been portions of the sealed documents (AT&T won't say), but in any case, weren't party to the Court's sealing order. So the Press, which wants to intervene only to argue that the documents should be made public, shouldn't be allowed to intervene because they've shown they want the documents made public. Nice. That's the kind of logic you can get for $350 an hour.

AT&T then goes on say that the press has been covering this case for a long time but didn't move to intervene until just before the May 17 hearing.

The Press offers no explanation for its dilatory conduct. Rather, it proclaims that as of the May 17 hearing, "the media had not yet had a chance to weigh in." But between March 31 and May 17, the Press had had an opportunity to "weigh in" - it just didn't do so. Now it asks the Court to be heard, to reconsider the Court's ruling and to unseal the documents "promptly."

But the Press does not explain why the Court should credit its current claims of urgency when it contentedly sat on the sidelines for over two months while the parties and Amici fought over, and the Court ruled on, the issues raised by plaintiffs' motion to unseal.

Dilatory? (past participle dilatus, meaning "characterized by procrastination" according to Merriam-Webster). Hit them with your big words, fire away.

"Contentedly sat on the sidelines?" Man, AT&T done broughten it.

It has been said that the "legal definition of chutzpah . . . is a young man, convicted of murdering his parents, who argues for mercy on the ground that he is an orphan." In an argument of this sort, the Press argues that the Sealed Documents do not contain trade secrets because "the general contents of the Klein Declaration and exhibits have been publicly disclosed" - namely, by leaks in the press.

Chutzpah aside, the Press is in no position to make such a claim because it does not know what it has not seen, or whether what it has seen is accurate. The isolated pieces of information that the Press and other members of the media have leaked to the public are not the same as the material that remains under seal. Despite the leaks, the information contained in the Sealed Documents remains valuable trade secrets. The information also would jeopardize the security of AT&T's network if disclosed.

Sweet. AT&T lawyers just redefined Wired News's publishing of the Klein documents (and USA Today's excerpting of the documents) -- done in order to allow full and free public debate -- as leaks to the public. Chutzpah, indeed.

Now they add a little sugar to the spice.

AT&T understands the interest of the press in learning more about the functioning of the federal government and, in particular, what the government allegedly is doing, or not doing, in the area of foreign surveillance. But quite separate and apart from that subject matter, AT&T has at stake here its own commercial interests - however prosaic and un-newsworthy.

AT&T has a genuine interest in protecting its network from disruption and so too do the millions of Americans who use that network daily. AT&T also has a genuine interest in protecting its trade secrets.

AT&T has developed technology for splitting and cross-cutting fiber optics. While not the sort of stuff that sells mass-circulation newspapers, that technology has commercial value, and it is technology in which AT&T believes that it has a substantial lead over its competitors.

Granted. Splitting and cross-cutting fiber optics may not sell mass-circulation newspapers (except when an insider alleges AT&T is doing that to spy on its customers) and that technology has commercial value (as pointedly referenced in Wired News coverage of the documents).

What AT&T doesn't say is that technology also has value for those who'd like to siphon off portions of a fiber optic light stream for spying purposes. Pair that unspoken corollary with the last sentence and one could read the argument to be that AT&T doesn't want its customers to know that it is the industry leader in its ability to spy on their online activities.

I don't think that's what they meant to imply, however.

Still, overall, a nice piece of work. It's a snarky world and its been disappointing to see AT&T PR flacks reined in.

While snark has been fairly well deployed here, I think it is just but an exhibition game for AT&T's response to Wired News's separate motion (.pdf) to intervene in the case to get all the documents unsealed.

I fully expect that June 12 filing will be so sharp and biting that I will have to patch my PDF reader as soon as I download it.

Wired News' motion, along with the print press's motion and the government and AT&T separate motions to dismiss the case, will all be heard on June 23.

It's almost as exciting as the upcoming World Cup (GO USA!).