Key Figure in Wiretapping Suit Goes Public

The lead plaintiff in a warrantless wiretapping lawsuit against AT&T is talking publicly about the case. Congress may grant AT&T and other firms retroactive legal immunity. That could end a flurry of lawsuits opposing the Bush administration's post-Sept. 11 eavesdropping program.

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Ever since a temporary spying law expired last month, House Democratic leaders have been in a standoff with the White House. At issue is whether phone companies that went along with the Bush administration's warrantless wiretapping program should be granted immunity from the dozens of lawsuits they now face.

The House passed an updated spying bill with no such immunity. The Senate's version, backed by the White House, includes immunity. As pressure mounts for the House to pass the Senate bill, the lead plaintiff in a lawsuit against AT&T is going public.

NPR's David Welna spoke with him.

DAVID WELNA: When news broke more than two years ago that the federal government had been monitoring Americans' international phone calls and emails without court orders, a 35-year-old northern California engineer named Tash Hepting decided to take action. He agreed to be the lead plaintiff in a class action lawsuit being brought by a privacy protection group he belongs to, the Electronic Frontier Foundation.

Mr. TASH HEPTING (Lead Plaintiff, Class Action Lawsuit): I had to have a long serious talk with my wife and some other members of my family to decide whether or not this was something I really wanted to do. I'm a fairly private person and I felt more than a little nervous about sticking my neck out.

WELNA: Hepting says his concern with civil liberties dates back to hearing what happened when his father, as a 13-year-old boy, picked up a shortwave broadcast from a station in mainland China.

Mr. HEPTING: So he writes to them, they send him back a QSL card and then they start sending him communist propaganda. Not that he particularly cared about it, but other people apparently did. Shortly after that he got a notice from the government — it as kind a postcard — and it informed him that all of his international correspondence was now being monitored.

WELNA: And it would continue to be monitored as his father went through high school and college. Hepting, as a subscriber to AT&T's long distance service, who'd made overseas calls, concluded his own communications had been monitored in what he considered an illegal government program.

Last week President Bush angrily defended that program.

President GEORGE W. BUSH: It was legal. And now all of the sudden plaintiff's attorneys, class action plaintiff's attorneys, you know - I don't want to try to get inside their head - I suspect they see, you know, a financial gravy train.

WELNA: That argument that the lawsuits against phone companies are more about lining trial lawyers' pockets than defending civil liberties is what Hepting says prompted him to go public.

Mr. HEPTING: Frankly I was more than a little insulted by that. You know, I have a very principled stand on this and a very strong belief about it, and it is not about the money. It's about wrong and right, it's about obeying the rule of law and it's about repercussions when you break the law.

WELNA: Those repercussions could be huge if all the damages sought were awarded. The AT&T class action lawsuit involves millions of customers who could each claim thousands of dollars. Hepting says that's not what motivates him.

Mr. HEPTING: What is important to me is not how much money we get out of it. What's important is that the amount of money that is assessed as damages has to be a sufficient amount to discourage future behavior. When it comes down to it, the most effective way to change corporate behavior is to affect the bottom line. If an action is not profitable, they won't do it.

WELNA: And Hepting applauds House Democratic leaders for so far refusing to vote on a bill with immunity for the phone companies.

Mr. HEPTING: It makes me feel good, makes me feel good to be represented by people of that caliber who are willing to stand up to an administration who's trying to go around them and circumvent the law.

WELNA: But the Democratic chairman of the Senate Intelligence Committee, Jay Rockefeller, agrees with President Bush, the phone companies need immunity if they're to be counted on for future cooperation. He predicts that a plaintiff like Hepting will not have his day in court.

Senator JAY ROCKEFELLER (Democrat, West Virginia, Chairman, Senate Intelligence Committee): There's no way they can do it because of the State's Secrets Act. The plaintiff will never get to find out anything.

WELNA: Even if there's not immunity?

Sen. ROCKEFELLER: Oh, if there's no immunity it may be different.

WELNA: But Rockefeller is confident that ultimately there will be immunity for the phone companies. The House is to act on the issue next week.

David Welna, NPR News.

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