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FISA reform working: Telecom immunity progresses in courts

Congress passed H.R. 6304, the FISA Amendments Act, in July and President Bush signed it quickly into law, praising the legislation as a necessary if much-delayed updating of the federal authority to monitor foreign electronic communications. The bill also provided retroactive legal immunity from lawsuits against telecommunication companies that acceded to federal orders to assist in the surveillance. Some 40 lawsuits had been filed against the companies, litigation that represented both political attacks against the Administration and trial lawyer desire for yet another payday at the expense of business and America's investors.

Wired is now reporting that the 9th U.S. Circuit Court of Appeals today sent the most prominent of the lawsuits against the telecoms, a class-action case, Hepting v. AT&T, back down to the district court. The ruling simply says: "In light of the FISA Amendments Act of 2008, Pub. L. No. 110-261, we remand this case to the district court. We retain jurisdiction over any further appeals."

Wired concludes: "Now the Attorney General need only send a letter to [District] Judge [Vaughn] Walker, certifying that each telecom did or did not participate. If they did, the government must show Walker a copy of the legal assurances the government gave the companies. Then Walker must dismiss the cases."

That's right. The new law requires the telecoms to only demonstrate evidence their assistance to the government was based on an order. The Electronic Frontier Foundation, which has been providing legal counsel on the suits, including Hepting, has threatened further litigation but offered little in the way of specifics.

Hans Bader at the Competitive Enterprise Institute examined the constitutional issues surrounding telecom immunity in a post today at the OpenMarket.org blog, noting that even law professors like Howard Wasserman who dislike immunity as a matter of policy regard the legal question as clear: Retroactive immunity is constitutional.

Earlier posts here.

UPDATE And here's EFF's legal brief objecting to the government's motion to hold the appeal in abeyance.

UPDATE The Electronic Frontier Foundation blogs on the ruling. Seems like they're hailing a victory.

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Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.