New EFF brief argues telecom immunity law is unconstitutional

The San Francisco nonprofit challenges the FISA Amendments Act of 2008.

By Cyrus Farivar
Published October 17, 2008 5:25PM (EDT)

So you guys remember that whole NSA wiretapping, eavesdropping fiasco? You know, that whole fantastic saga about how our tax dollars were being used to spy on our Internet traffic? That that was a fun one. Then, the story got even better earlier this year, when Congress approved a measure to give immunity to the major telecoms that were behind this "patriotic" move.

As our own Glenn Greenwald wrote in February 2008:

The Senate today -- led by Jay Rockefeller, enabled by Harry Reid, and with the active support of at least 12 (and probably more) Democrats, in conjunction with an as-always lockstep GOP caucus -- will vote to legalize warrantless spying on the telephone calls and emails of Americans, and will also provide full retroactive amnesty to lawbreaking telecoms, thus forever putting an end to any efforts to investigate and obtain a judicial ruling regarding the Bush administration's years-long illegal spying programs aimed at Americans. The long, hard efforts by AT&T, Verizon and their all-star, bipartisan cast of lobbyists to grease the wheels of the Senate -- led by former Bush 41 Attorney General William Barr and former Clinton Deputy Attorney General Jamie Gorelick -- are about to pay huge dividends, as such noble efforts invariably do with our political establishment.

However, late Thursday, the Electronic Frontier Foundation filed a brief formally challenging the constitutionality of the FISA Amendements Act in U.S. District Court in San Francisco.

"The FISA Amendments Act (FISAAA) violates the federal government's separation of powers and violates the Constitution," EFF spokesperson Rebecca Jeschke wrote me in an email. "We want to make sure this unconstitutional law does not deny telecom customers their day in court. They have legitimate privacy claims that should be heard by a judge. Extensive evidence proves the existence of a massive illegal surveillance program affecting millions of ordinary Americans. The telecoms broke the law and took part in this. The FISA Amendments Act and its immunity provisions were an attempt to sweep these lawsuits under the rug, but it's simply unconstitutional."

From the new brief:

Plaintiffs submit this Summary of Voluminous Evidence pursuant to Federal Rule of Evidence 1006 to assist the Court in its assessment of whether or not there is substantial evidence supporting the Public Certification of the Attorney General of the United States (Case M:06-cv-01791-VRW ("MDL") Dkt. 469-3) ("Mukasey Certification") that the telecom defendants are entitled to dismissal of these actions under Section 802. The evidence contained in this voluminous record supports plaintiffs’ Opposition To Motion Of The United States Seeking To Apply FISAAA Section 802 (50 U.S.C. § 1885a) To Dismiss These Actions ("Section 802 Opposition"). Because the record is so large, and because new relevant public domain information continues to come to light, a Summary of Voluminous Evidence is an appropriate submission to assist the Court. See Fed. R. Evid. 1006 ("The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation.")

For those of you who keep score at home, you'll remember that the San Francisco-based nonprofit represents the plaintiff in the January 2006 class-action suit Hepting v. AT&T. That case alleged that AT&T permitted and aided the construction of a massive communications surveillance network. The U.S. government made a motion to have the case dismissed, which the court rejected, and that decision was appealed to the 9th Circuit, where it has been awaiting a decision since late 2006.

However, the news FISA legislation could potentially make the arguments in Hepting v. AT&T moot.

So that means, according to an EFF written statement, that the FISA law:

allows for the dismissal of the lawsuits over the telecoms' participation in the warrantless surveillance program if the government secretly certifies to the court that either the surveillance did not occur, was legal, or was authorized by the president. Attorney General Michael Mukasey filed that classified certification with the court last month.

As such, the EFF is now trying to get the FISA law overturned.

In that same written statement, EFF senior staff attorney Kevin Bankston says: "The immunity law puts the fox in charge of the hen house, letting the Attorney General decide whether or not telecoms like AT&T can be sued for participating in the government's illegal warrantless surveillance. In our constitutional system, it is the judiciary's role as a co-equal branch of government to determine the scope of the surveillance and rule on whether it is legal, not the executive's. The Attorney General should not be allowed to unconstitutionally play judge and jury in these cases, which affect the privacy of millions of Americans."

I've got some questions in to the EFF and other third-party legal scholars to find out how this approach might play out and will update later today as I hear more. But for now, I'm glad to see that someone is standing up to the feds on this one.

(Via Boing Boing)

Cyrus Farivar

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