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Back in court -- foreign intelligence and telecom immunity

The Electronic Frontier Foundation has now filed its challenge against the constitutionality of Public Law 110-261, the FISA Amendments Act of 2008, specifically the law's granting of retroactive civil immunity to telecommunications companies that assisted in the federal government's formal request to monitor foreign communications.

The EFF submitted a brief Thursday in the U.S. District Court in San Francisco in Re: National Security Telecommunications AGency Litigation, MDL No. 1791. The brief comes in response to the U.S. Justice Department's motion to dismiss civil lawsuits against the telecoms; the legislation (H.R. 6304) provided for the dismissals if Justice demonstrated that it had provided a written request for the surveillance authorized by the president. The ACLU and several affiliaties joined in the filing (ACLU news release).

From the EFF's news release, "EFF Challenges Constitutionality of Telecom Immunity in Federal Court":

"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."

It's been a while since we've written on this, so for background see these posts at Point of Law.com and the NAM's blog, Shopfloor.org. To recap the arguments: Companies deserve legal protections for following in good faith what were adequately represented to them as legal orders to assist in monitoring of foreign communications. Corporations should not be punished for being good corporate citizens who help prevent America's enemies from crashing planes into buildings or blowing up people just going about their business.

Opponents of the law included not just privacy absolutists -- EFF and ACLU -- but also critics of the Administration's foreign policy and intelligence activities, Glenn Greenwald at Salon.com most prominently, as well as frenzied partisans and bloggers. Trial lawyers are also keenly interested in keeping litigation alive so as to dig into the deep pockets of the telecoms.

No matter how wrong the EFF is on the legal merits and the dangerous disregard, we think, the foundation shows for the intelligence measures necessary to defend America, it really does a great job of documenting the issue. So, for more on the FISA issue and the EFF's class-action lawsuit, Hepting v. AT&T, go here.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.