[Infowarrior] - Warrantless surveillance lawsuit thrown out

[Richard Forno]

Warrantless surveillance lawsuit thrown out

A federal district judge has dismissed a lawsuit over warrantless  
surveillance that the EFF and ACLU filed against prominent  
telecommunications companies on behalf of the Al-Haramain Islamic  
Foundation. The judge affirmed that the telecom companies are  
protected by the immunity provisions added to FISA by Congress.

By Ryan Paul | Last updated June 3, 2009 10:10 PM CT

http://arstechnica.com/tech-policy/news/2009/06/warrantless-surveillance-lawsuit-thrown-out.ars

Federal district judge Vaughn Walker has rejected lawsuits that aimed  
to hold telecommunications companies accountable for their role in a  
controversial warrantless surveillance program that was orchestrated  
in secret by the federal government. The Electronic Frontier  
Foundation and American Civil Liberties Union are preparing to appeal  
the dismissal.

The warrantless surveillance program is one the more contentious  
controversies that still lingers from Bush's tenure in office. The  
Bush administration attempted to leverage the State Secrets privilege  
to block litigation that aimed to hold participants in the  
surveillance program accountable for violating privacy laws. When it  
became clear that the courts were going to allow the lawsuits to move  
forward, Congress intervened and passed a FISA amendment to grant the  
telecom companies explicit immunity. President Obama voted in favor of  
immunity, despite consistently promising to oppose it.

EFF and ACLU's lawsuit against the telecoms on behalf of the Al- 
Haramain Islamic Foundation is one the most significant pending  
lawsuits targeting the warrantless surveillance program, and it was  
viewed by privacy advocates as a means of bringing accountability and  
more robust judicial oversight to the surveillance mess. Judge Walker  
has thrown out the suit, citing the FISA telecom immunity amendment as  
the basis for dismissal. He affirmed that the evidence provided under  
seal by the government demonstrated that the conduct of the telecoms  
meets the criteria for immunity grants.

The ACLU and EFF argued that the surveillance program was so broad and  
far-reaching that it necessarily extended beyond those boundaries and  
should not be entitled to protection. They contend that the function  
of the surveillance program was not to detect or prevent terrorist  
attacks, but to broadly enable collection of communication records  
regardless of whether those records are specifically needed.

"While plaintiffs have made a valiant effort to challenge the  
sufficiency of certifications they are barred by statute from  
reviewing, their contentions under section 802 are not sufficiently  
substantial to persuade the court that the intent of Congress in  
enacting the statute should be frustrated in this proceeding in which  
the court is required to apply the statute," Walker wrote in his  
decision. "The court has examined the Attorney General's submissions  
and has determined that he has met his burden under section 802(a).  
The court is prohibited by section 802(c)(2) from opining further."

The EFF and the ACLU are planning to launch an appeal, asserting that  
the FISA amendments which granted telecom immunity are unconstitutional.

"We're deeply disappointed in Judge Walker's ruling today," said EFF  
Legal Director Cindy Cohn in a statement. "The retroactive immunity  
law unconstitutionally takes away Americans' claims arising out of the  
First and Fourth Amendments, 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."

The Obama administration has indicated that it has no plans to hold  
the telecoms or previous administration accountable for alleged  
illegal activity. It will continue to sit on the details of the  
surveillance program and will not help to facilitate any of the  
ongoing litigation. It's looking increasingly likely that the telecoms  
will get a free pass and the true scope of the Bush administration's  
surveillance program will never be known.