On December 16, 2005, the New York Times reported that the NSA had engaged in an extensive electronic surveillance program without judicial oversight under the authorization of the President at least since 2001.

The following day in his weekly radio address, President Bush confirmed that he had authorized the NSA "to intercept the international communications of people with known links to al Qaeda and related terrorist organizations." He claimed that "the unauthorized disclosure of this effort [in media reports] damages our national security and puts our citizens at risk."

The lawsuit against AT&T, filed in January by the Electronic Frontier Foundation, an online civil liberties group, alleges that the telecom company opened its facilities and its massive "Daytona" caller information database, estimated to contain over 300 terabytes of data, to the NSA for datamining and in so doing violated privacy and communications laws.

In May, the government filed a motion to dismiss the EFF's lawsuit, claiming any inquiry into AT&T's actions would compromise national security.

"The court's opinion makes clear this is a case where the court just refused to duck," attorney Robert Fram, co-chair of the Intellectual Property Litigation Practice Group at Heller Ehrman LLP, said in a teleconference following the decision. "[The judge] said he had a constitutional duty to adjudicate the disputes before him and particularly where they involve individual liberty. He made it very clear that the state secret privilege which the government invoked in its motion cannot be used to shield government illegality or AT&T illegality."

The court has asked for a briefing on July 31st as to whether discovery, the process of investigating the claims in the case, should be stayed during a government appeal. A hearing on that matter is planned for August 8th.

The U.S. Department of Justice had no immediate comment. "We're reviewing the judge's ruling," spokesperson Charles Miller said. "No determination has been made by the United States as to what its next step will be in this matter.

Congress, however, is considering whether to remove such lawsuits from the public eye. During Congressional hearings on Wednesday, legal experts debated whether the Foreign Intelligence Surveillance Act's requirement to get warrants for surveillance had become obsolete.

Legislation sponsored by Senator Arlen Specter (R-PA) and, following modification, supported by the White House, would allow but not require the Foreign Intelligence Surveillance Court to review surveillance programs, such as the one in which AT&T is allegedly involved, in secret.

The bill has been criticized by the EFF and other advocacy groups such as the Center for Democracy & Technology (CDT).

In testimony before the House Intelligence Committee on Wednesday, CDT policy director James Dempsey said, "Rather than restoring the Constitutional balance of power by ensuring judicial review of government surveillance in the U.S., the Cheney-Specter bill would further insulate the government from accountability for violation of American civil liberties."