A federal judge on Friday is to hold the first hearing following an appellate court's decision reinstating allegations that the government is siphoning Americans' communications from telecoms to the National Security Agency without warrants.

The new judge on the case, U.S. District Judge Jeffrey White of San Francisco, isn't so sure the President Barack Obama administration may automatically prevail by its assertion of the state secrets privilege, according to the judge's remarks in a Wednesday filing.

The state secrets doctrine was first recognized by the Supreme Court in the McCarthy era, and is asserted when the government claims litigation threatens national security and might expose state secrets. Judges routinely dismiss cases on that assertion alone.

White, in a public communication to the Obama administration and the Electronic Frontier Foundation – which is alleging the dragnet spying, notes a 2007 court case in which a federal judge declined the government's privilege by ruling federal spy laws barred, or "preempted" the doctrine. White notes that an appellate court did not address the issue when that case was on appeal to the 9th U.S. Circuit Court of Appeals.

"Does the Ninth Circuit’s decision not to review the district court's finding of preemption have any persuasive authority?" White asked the parties. (.pdf)

The EFF and the administration will argue Friday over that and other questions Judge White posed in his communication.

The EFF's lawsuit accuses the federal government of working with the nation's largest telecommunication companies to illegally funnel Americans' electronic communications to the National Security Agency without court warrants – a surveillance program the EFF said commenced under the George W. Bush administration following 9/11.

A San Francisco federal judge had tossed the case against the government but it was revived by the 9th U.S. Circuit Court of Appeals. U.S. District Judge Vaughn Walker, now retired, said the lawsuit amounted to a "general grievance" from the public, and not an actionable claim. Walker did not address the government's state secrets assertion.

In reinstating the case, the appeals court said the EFF's claims "are not abstract, generalized grievances and instead meet the constitutional standing requirement of concrete injury. Although there has been considerable debate and legislative activity surrounding the surveillance program, the claims do not raise a political question nor are they inappropriate for judicial resolution."

The EFF’s allegations are based in part on internal AT&T documents, first published by Wired, that outline a secret room in an AT&T San Francisco office that routes internet traffic to the NSA.

The lawsuit was filed immediately after President Bush signed legislation immunizing the telecommunication companies for their alleged participation in the program. The lawsuit prompted the Obama administration to invoke the state secrets privilege — despite having announced he would limit his use of that doctrine at the beginning of his four-year term.