Ninth Circuit Upholds Legal Immunity for Telecoms in FISA Case
A federal court has upheld on appeal a ruling that telecom companies can receive legal immunity from Congress for participating in the warrantless wiretapping program under George W. Bush.
A U.S. appeals panel on Thursday upheld the constitutionality of a federal law that grants immunity to telecommunications companies that assist the U.S. government in conducting surveillance of American citizens.
Several lawsuits filed in the wake of revelations about warrantless wiretapping alleged that telecom companies provided authorities with direct access to nearly all communications passing through their domestic facilities.
Defendants included AT&T, Sprint Nextel and Verizon Communications Inc.
This came out of a three-judge panel on the liberal Ninth Circuit Court of Appeals. They protected the telecoms from claims, not the government, so there’s theoretically an avenue to go after the constitutionality of the immunity law that wat. But the government has consistently frustrated lawsuits to that end by declaring everything protected under the state secrets privilege, and courts have generally given wide latitude on those declarations.
However, the Ninth Circuit did allow one case to advance today, ignoring the secrecy claims:
In a separate ruling, the 9th Circuit on Thursday allowed a separate case against the government to proceed, in which plaintiffs allege a communications dragnet of ordinary citizens.
That lawsuit claims the National Security Agency diverted Internet traffic into secure rooms in AT&T facilities across the country. The proposed class action alleges “an unprecedented suspicionless general search” throughout the communications network.
The 9th Circuit reversed a lower court and ruled that the plaintiffs have legal standing to pursue the case.
I’ll wait for bmaz’ analysis, but this could actually get us somewhere on the broader constitutional questions over wiretapping without a warrant. On the subject of the telecoms getting off scot-free, however, we appear to have reached a dead end.
UPDATE: And right on cue, here’s the scoop from Emptywheel. The summation:
In short, the 9th Circuit just said to the government that it could have one–telecom immunity–or another–immunity from citizens’ efforts for redress for illegal surveillance, but it can’t have both. The Executive doesn’t get to pick and choose when it wants to bow to the authority of Congress’ Article I powers.