I'm not a lawyer, and this subject is too big for a blog post, but here goes.

Making a non-profit "Constitutional Rights" organization is apparently too easy today. The Electronic Frontier Foundation is one such group. The EFF won its first lawsuit on the grounds that a search warrant included the words "including but not limited to" when the Constitution clearly says "no Warrants shall issue without probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized." However, their track record has been pretty bad ever since.

It's so bad that the Register recently wrote an opinion piece titled "EFF volunteers to lose important suit over Sony 'rootkit'", with the statement "The Electronic Frontier Foundation (EFF) is renowned for its ... uncanny ability to stuff every case up in ways that lead to permanent injury for everyone except the entities they oppose."

I can't tell if the EFF's lawyers are simply in over their heads, or if their legal strategy is to abuse the court system until the judge finally shuts them down. But their current lawsuit againt AT&T is in terrible shape. So, for some armchair quarterbacking from a non-lawyer:

The lawsuit is over AT&T's cooperation with the "Terrorist Surveillance Program." The main thrust of the case was originally telecommunications laws that specifically prohibit phone companies from wiretapping on behalf of police without first seeing a warrant. That's it. Open and shut. However, EFF's attorneys apparently wanted to be involved in something bigger, and they made sure every brief they filed has several general references to the First and Fourth Amendments. Additionally, while they filed the lawsuit against AT&T, EFF's attorneys spend most of their briefs talking about the NSA. By doing that, they lost control of the case, and they are currently headed for a legal train wreck.

AT&T filed a motion to dismiss (PDF). While the motion to dismiss argues several technical issues involving EFF's ability to sue, the two big points are (1) a federal law immunizes AT&T if it believed the government program was legal (and any lawsuit over the wiretapping should be filed against the government), and (2) AT&T's "wiretapping activities" weren't for AT&T's own ends, but for the government's ends (so any lawsuit over those activities should at least name the government).

Squint really closely. The court can order AT&T to stop helping the NSA. The immunity only means that AT&T can't get punished for what it's already done. If EFF cared about making a difference, that should be enough. If EFF wants to do something else, they ought to join the ACLU's suit against the government.

Additionally, EFF's constant insistence on trying the government, even though the government was not named in the suit has led John Negroponte (PDF) and Keith Alexander (PDF) to invoke NSA's ability to shut down any lawsuit. From Keith Alexander's statement: "NSA is not required to demonstrate specific harm when invoking this statutory privelege, but only to show that the information relates to its activities." Well, the EFF already showed that the information relates to the NSA's activities!

The EFF should have known that making a circus out of its own lawsuit was going to lead to these crippling developments. If the attorneys had narrowed their focus, and only argued about AT&T's activities, and only asked for an injunction, I believe they'd get their day in court. As it is, reading AT&T's responses to EFF's briefs is almost entertaining.

There's an old saying that a shyster is an attorney that "when the facts are against him, pounds on the law, when the law is against him, pounds on the facts, and when both are against him, pounds on the table." EFF's motions spend a lot of time pounding on the table.