Telcos Score Victory in Legal Wrangling Over Warrantless Wiretaps

U.S. District Judge Vaughn Walker on Wednesday dismissed dozens of lawsuits against telecommunication companies that cooperated with the Bush administration’s so-called warrantless wiretapping activities several years ago. The once-secret program allowed government agents to listen in on U.S. citizens’ telephone conversations without having to get a warrant as required by law.

Walker’s ruling upheld legislation to grant the telcos retroactive immunity from liability for warrantless wiretapping, which was supported by the Obama Administration.

Post 9/11 Atmosphere

The warrantless wiretapping saga began in the aftermath of 9/11. The Bush administration approached all of the major telcos, asking them to accept the legal reasoning that warrants were not necessary in the pursuit of intelligence concerning any forthcoming terrorist attacks. Just about every major firm agreed to participate.

The media exposed the scheme in December 2005, on a tip by a former employee at one of the telcos, and an uproar ensued with both critics and proponents laying out their cases.

Advocates for allowing the government the authority to request wiretaps without warrants argued that broad surveillance powers were necessary to identify and prevent terrorist attacks. The government already had the ability to get timely court approval for wiretaps — including a provision for obtaining approval retroactively, if necessary — but it said that the existing processes weren’t efficient enough.

Critics pointed to the secret and sudden seizure of a new power by the executive branch, the erosion of personal rights, and the fact that under the new system there was little to no judicial oversight.

While the government was relatively immune to litigation over the matter, the telcos that participated at the behest of Bush officials were not. Once their role became public, they were targeted in some 40 lawsuits by privacy organizations and customers who believed their phones had been illegally tapped.

Lawmakers Step In

Congress pre-empted any drawn-out discussion of the issues or the rights of the users to pursue their complaints in court by providing the telcos with immunity for their actions. The bill, which was signed into law last year, also codified the right of the executive branch to spy on U.S. residents without judicial oversight.

Specifically, it amended the Foreign Intelligence Surveillance Act, or FISA, to allow dismissal of lawsuits upon the government’s secret certification to the court that the surveillance in question did not occur, was legal, or was authorized by the president.

Walker’s decision this week may not be the last word on the matter. Disappointed in the ruling, both the Electronic Frontier Foundation and the American Civil Liberties Union of California, together with its Illinois affiliates, are planning to appeal the decision to the 9th U.S. Circuit Court of Appeals on grounds that the immunity is unconstitutional.

The EFF and the ACLU are co-coordinating counsel in the 46 lawsuits concerning the government’s warrantless surveillance program. Additionally, the EFF is representing plaintiffs in Hepting v. AT&T, a class action lawsuit brought on behalf of millions of AT&T customers whose private domestic communications and communication records were illegally turned over to the National Security Agency.

Retroactive immunity unconstitutionally deprives Americans of making claims based on first and fourth amendment rights; 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, according to EFF Legal Director Cindy Cohn.

Delicate Balance

If nothing else, the case represents the often delicate balance between constitutional and practical concerns generated by modern technologies, noted Raymond Van Dyke, a partner with Merchant & Gould.

“Although the judge’s ruling followed the letter of the law, many privacy groups felt that the constitutional issues outweighed the broad immunity accorded the phone companies after 9/11,” he told the E-Commerce Times.

However, “the Obama administration praised the ruling, acknowledging the serious national security issues at stake,” concluded Van Dyke.