The first EFF lawsuit stemmed from media reports in late 2005 and 2006 showing that then President Bush had authorized the NSA to intercept phone and Internet communications of U.S. citizens without the need for any judicial review.

The surveillance was initiated in the aftermath of the terrorist attacks of Sept. 11, 2001. It resulted in vast amounts of phone call and email records of millions of Americans being secretly intercepted and mined for the purposes of identifying and tracking potential terrorists.

Several of the largest telecommunications companies in the country were later revealed to have opened up their customer communications databases to the NSA.

EFF's lawsuit against AT&T was one of more than two dozen filed against telecommunications companies in the aftermath of those disclosures. EFF's complaint included testimony from , a retired AT&T telecommunications engineer turned whistleblower who how AT&T had routed Internet traffic to a secret NSA-controlled room in Folsom Street, San Francisco from where it was monitored.

In 2009, a federal judge dismissed EFF's lawsuit against AT&T along with the other cases, citing the FISA Amendments Act signed into law by President Bush in 2008. The controversial law basically gave the telecommunications company's retroactive immunity for their participation in the warrantless wiretapping activities. The Obama Administration too has and has argued that the lawsuits should not be allowed to proceed because it could result in the exposure of state secrets.