The Electronic Frontier Foundation filed a class action suit against AT&T early this year for allowing the National Security Agency to engage in surveillance activities initiated after the September 11, 2001, attacks using AT&T’s network. Now the American government has asked a San Francisco federal district court judge, Vaughn Walker, to dismiss the case because of national security concerns. These concerns are legitimate.

EFF is a nonprofit organization committed to preserving and advancing consumer “digital rights.” Its board of directors includes many technologists and leading lawyers in the country such as Lawrence Lessig of Stanford University Law School and Pamela Samuelson of University of California at Berkeley Law School. EFF also has an advisory board with nearly a dozen eminent academics and practitioners in the new field of the law of digital rights.

Given the legal orientation of the leadership of EFF, it is not surprising that the organization is actively engaged in litigation. EFF’s Web site prominently displays legal issues and cases, including those with EFF as a party. EFF claims that it, “on behalf of a nationwide class of AT&T customers, is suing to stop this illegal conduct and hold AT&T responsible for its illegal collaboration in the government’s domestic spying program, which has violated the law and damaged the fundamental freedoms of the American public.”

Whether the NSA’s surveillance activities were lawful or not is a subject of wide dispute. It is being addressed within the administration, in Congress, in the courts, and in public and private conversations around the country. But if EFF has a legitimate concern, it should be with governmental activities, not the “collaboration” of private parties responding to governmental requests based on national security.

For decades, telecommunications carriers in America have made their facilities available to government officials with authorized national security and law enforcement requests. When the NSA contacts a telecommunications carrier with a request, it is presumptively legal and authorized. AT&T or any other carrier would have little basis to distinguish and challenge the legitimacy of the requests from national security or law enforcement agencies.

Yet EFF would have had AT&T conduct such a legal challenge to the NSA. This is an unrealistic view of the operations of a telecommunications company. Requests from law enforcement and national security agencies to telecommunications carriers are unusual events and handled with the utmost confidentiality and secrecy. Although there have been occasional instances of disputes between carriers and law enforcement officials about the liability of carriers for transmission of pirated material, there are few, if any, instances of disputes about national security requests.

No one should want to see private parties, even those as large and influential as AT&T, to be in a position to veto governmental decisions about national security. We may never know – and we should never have to know – how many requests AT&T or other carriers receive from governmental agencies for assistance with law enforcement and national security matters. We do know that AT&T and other carriers have not sabotaged those efforts by refusing to cooperate by challenging them in court. If any of those governmental decisions should prove unlawful, the courts should address those issues with the government as a party to the dispute, not in disputes among private parties.

Judge Walker has a great dilemma. He has a class action suit brought against a private party that should have been brought against the federal government. He has the federal government asserting both “military and state secrets privilege” that, if exposed in court, would be harmful to governmental interests.

America is engaged in a war against terrorists who use all available means to undermine the rule of law and the cooperation that private parties give their governments, particularly our own. If EFF prevails in court against AT&T, no private party would dare help the government on any law enforcement or national security request without first going to court. Our national security and law enforcement would be greatly diminished. Abu Musab Al-Zarqawi and other terrorists would no doubt cheer, now being free of much American surveillance. In targeting AT&T in this case in the name of promoting digital rights, EFF is inadvertently undermining those very rights and much more.

A former FCC commissioner, Mr. Furchtgott-Roth is president of Furchtgott-Roth Economic Enterprises. He can be reached at hfr@furchtgott-roth.com.