Telecom Amnesty Illegal, Rights Group Argues Ahead of Court Showdown

Submitted by MacRonin on November 22, 2008 - 9:51pm

Telecom Amnesty Illegal, Rights Group Argues Ahead of Court Showdown: Via Threat Level

Congress had no right to pass a law intended to torpedo lawsuits accusing the nation???s telecoms of massive violating privacy laws when they helped the Bush administration???s warrantless wiretapping of Americans, a privacy group told a federal judge Thursday.

The reply brief (.pdf) from the Electronic Frontier Foundation marks the last paper salvo in the battle over retroactive amnesty for the nation???s telecoms that are accused of helping the Bush administration secretly circumvent federal wiretapping law for five years.

Come December 2, the provision's constitutionality will be argued in front of federal judge Vaughn Walker in a courthouse in San Francisco.

The EFF filed suit against AT&T in 2006, alleging the company secretly let the NSA wiretap its internet switching center in San Francisco and gave billions of phone records to the government for data mining. The government intervened on AT&T's behalf and wants the suit dismissed.

The EFF blasted the retroactive amnesty as a ???blatant attempt to prevent this Court???and every other court, federal or state???from deciding whether the carrier defendants conducted dragnet, warrantless surveillance of millions of Americans??? communications and communications records in violation of the Constitution and numerous statutes.???

The government and the telecoms argued in earlier briefs that Congress can tinker with ongoing legislation without violating the Constitution and that citizens should sue the government, not private companies, over the spying.

Congress gave the attorney general the power to force a judge to dismiss such cases, in July, following months of acrimonious debate.

Attorney General Michael Mukasey decided to use the power in September to seek dismissal of the more than 30 civil suits accusing the nation???s internet and telephone providers of violating federal wiretapping law.

To win dismissal, the attorney general must provide some evidence to the judge either that the companies were given assurances the program was legal or that they did not help. After seeing that evidence in secret, the judge has little choice but to dismiss the suits without being able to look at what the company did.

That odd mechanism makes the statute unconstitutionally akin to a line item veto, the EFF argues.

Congress did not set forth a new legal standard to be applied to all surveillance actions, or even to a  subset of those actions; the Attorney General decides for each case whether to repeal existing law  and apply new law.

The EFF also argues that Congress can only immunize conduct that is Constitutional and that the carriers have to be suable.

The carriers have the primary duty to protect their customers??? constitutional rights from the government, since the carriers control access to their customers??? communications and communications records. The carriers??? decision to ignore that duty, accede to patently unconstitutional requests, and build a vast surveillance infrastructure in order to do so, demonstrates why private parties have long been held accountable for their own unconstitutional acts done as agents to the government. Only relief against the carriers can deter such future constitutional violations.

 

Telephone and internet companies routinely help the government spy-on suspected criminals and spies and their equipment is required by law to be wiretap-friendly. But federal law says companies also have to get a valid court order before turning on a wiretap.

Shortly after 9/11, the Bush administration decided those laws didn't apply to the president during wartime and secretly began listening into Americans' international calls and combing through their phone records to find suspected terrorists.

The government says the program prevented terrorist plots, but news stories indicate the FBI quickly grew tired of running down leads from the program that would lead them to a pizza delivery place.

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