Because they’re guilty as hell:

One sunny day in San Francisco two winters ago, a retired telecommunications technician with an understandable distrust of telephones stepped off a BART train after a short but fateful ride. His name was Mark Klein, and his destination was a red brick office building in an untouristed part of the city dominated by low-rise warehouses. There he met with a small group of maverick, tech-savvy lawyers called the Electronic Frontier Foundation.

For Klein, then 60, this trip was a long time coming. As a veteran telecommunications technician and computer network associate at AT&T, he had in recent years obtained several company documents that described in specific, technical terms a secret room he says the National Security Agency (NSA) had set up on the sixth floor of an AT&T building downtown. Klein entered the room itself only once, and that was just for a couple of minutes. (Generally, people needed a security clearance to gain access.) However, just one floor above, he managed the Internet-traffic room to which it was electronically connected. Through that work, the documents he gathered, and conversations he had with other employees, Klein came to understand that his employer was colluding with the federal government to siphon a copy of billions of domestic Internet communications into that secret room, every second of every day. And all without a warrant. “Even Nixon didn’t go that far,” Klein thought. As he later told MSNBC, the situation made him think of George Orwell’s classic 1984. “Here I was, being forced to connect the Big Brother machine.” However, after complaining to a supervisor, with no result, he did not pursue the matter. He retired in 2004.

Then, in December 2005, the New York Times outed the Bush administration’s warrantless domestic-surveillance program, which the administration subsequently defended as an effort to monitor no more than a handful of phone calls to the Middle East. This convinced Klein that the time was finally right to share his inside information.

His timing was better than he imagined: When he knocked on EFF’s door that day in January 2006, the lawyers inside were already working feverishly to craft a class action against the nation’s largest telecommunications company.

      Like Klein, EFF senior staff attorney Kevin Bankston had spent much of the previous December reading press accounts of the administration’s secret surveillance program. “It was all I thought about over the holiday,” he remembers. In fact, at his boss’s New Year’s Eve party the first words out of Bankston’s mouth when she opened the door were, “I want to sue AT&T.”

So less than a month later, when Klein showed up at EFF without an appointment, carrying a CD-ROM that contained several PDF files, Bankston didn’t need to be convinced to hear him out. “He seemed immediately very credible and concerned about the invasion of privacy,” Bankston says. “He was everything you’d want a whistleblower to be.”

Lee Tien, another EFF senior staff attorney, also met Klein that day. “We were cautious,” Tien says. “People send us all sorts of stuff, and one should not expect manna from heaven.” Still, before long he too concluded that Klein was exactly the sort of insider they needed.

Thanks to the many civil rights cases EFF’s lawyers and staff technicians have brought over nearly two decades, they enjoy something of a cult following. “In my world they are heroes,” says technologist and entrepreneur Brewster Kahle, an EFF board member who is the digital librarian and cofounder of the Internet Archive, a San Francisco nonprofit library. “They are a clear, nonradical group that is very highly respected in Silicon Valley.”

Outside of the Valley, though, EFF’s exploits are not nearly as well known. “Most lawyers in the past haven’t been aware of us,” says Jason Schultz, a former staff attorney who left EFF in November to take a post at UC Berkeley. “EFF, by definition, is a group that deals with cutting-edge technology issues, and most attorneys haven’t cared about those issues.”

But as more Americans have become preoccupied with Web browsing, emailing, blogging, text messaging, and video uploading, concern about the regulation and monitoring of electronic communications has grown. This, no doubt, helps make EFF’s class action against AT&T (Hepting v. AT&T, Nos. 06-17132 and 06-17137) both compelling and comprehensible, even to ordinary Americans. Today it is one of more than three dozen lawsuits against several telecom companies that have been consolidated before U.S. district Chief Judge Vaughn R. Walker in California. “[Hepting] is much more mainstream than our other cases-it is much less techy,” says EFF’s executive director and president, Shari Steele. “We have made Mom and Pop notice us. People on the street are saying ‘Uhhh!’ when they hear that the government is looking and listening without warrants.”

The suit’s potential reach is evident just from the varied backgrounds of its three named class representatives. Tash Hepting is a customer-service manager who lives in San Jose. Gregory Hicks, also of San Jose, is a retired naval officer. And Erik Knutzen is a photographer and land-use researcher who lives in Los Angeles.

Meanwhile, even Judge Walker felt he had to switch from AT&T to another phone company to eliminate “any possible interest in the declaratory and injunctive relief sought by plaintiffs.”

Hepting “is the big enchilada,” observes EFF board member Pam Samuelson, a professor at both UC Berkeley’s law school and the School of Information Management.

Still, for EFF to win this fight, it will have to overcome an extraordinary set of legal hurdles, not the least of which is a White Houseled effort to legislate Hepting out of the courtroom. Since late summer, President Bush has been demanding immunity for the telecom providers that cooperated with the NSA’s surveillance. In late October that push was joined by four former officials of his administration-including former attorney general John Ashcroft-who signed a letter urging the Senate Judiciary Committee to pass an immunity provision approved by the Senate Select Committee on Intelligence on a bipartisan vote.

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