[Infowarrior] - EFF Challenging Telcom Immunity

[Richard Forno]

http://www.eff.org/press/archives/2008/10/17

October 17th, 2008

EFF Challenges Constitutionality of Telecom Immunity in Federal Court
Unconstitutional Law Cannot Shut Courthouse Door on Americans' Privacy  
Claims

San Francisco - The Electronic Frontier Foundation (EFF) Thursday  
challenged the constitutionality of a law aimed at granting  
retroactive immunity to telecommunications companies that participated  
in the president's illegal domestic wiretapping program.

In a brief filed in the U.S. District Court in San Francisco, EFF  
argues that the flawed FISA Amendments Act (FAA) violates the federal  
government's separation of powers as established in the Constitution  
and robs innocent telecom customers of their rights without due  
process of law. Signed into law earlier this year, the FAA 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.

"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," said EFF Senior Staff Attorney Kevin Bankston. "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."

In the public version of his certification to the court, Attorney  
General Mukasey asserted that the government had no "content-dragnet"  
program that searched for keywords in the body of communications.  
However, the government did not deny the dragnet acquisition of the  
content of communications. In support of its opposition, EFF provided  
the court with a summary of thousands of pages of documents  
demonstrating the broad dragnet surveillance of millions of innocent  
Americans' communications. Eight volumes of exhibits accompanied the  
detailed summary, including eyewitness accounts and testimony under  
oath.

"We have overwhelming record evidence that the domestic spying program  
is operating far outside the bounds of the law," said EFF Senior Staff  
Attorney Kurt Opsahl. "Intelligence agencies, telecoms, and the  
Administration want to sweep this case under the rug, but the  
Constitution won't permit it."

EFF is representing the plaintiffs in Hepting v. AT&T, a class action  
lawsuit brought on behalf of millions of AT&T customers whose private  
domestic communications and communications records were illegally  
handed over to the National Security Agency (NSA). EFF has been  
appointed co-coordinating counsel along with the American Civil  
Liberties Union (ACLU) for all 47 of the outstanding lawsuits  
concerning the government's warrantless surveillance program.

The constitutional challenge is set to be heard on December 2.

For the full brief:
http://www.eff.org/files/filenode/att/opposition101608.pdf

For the summary of evidence:
http://www.eff.org/files/filenode/att/section1006summary101608_0.pdf

For more on the NSA spying:
http://www.eff.org/issues/nsa-spying

Contacts:

Kevin Bankston
Senior Staff Attorney
Electronic Frontier Foundation
bankston at eff.org

Kurt Opsahl
Senior Staff Attorney
Electronic Frontier Foundation
kurt at eff.org