Thursday, June 4, 2009

Suits Against Telecoms Wiretapping Dismissed

I'm not sure if this is a sign indicating just how important and ubiquitous the issue of privacy is becoming, or whether its just a random anomaly, but there's been an avalanche of important stories to report on in the past couple days!

So, let's begin with this deeply disappointing - though not unexpected - breaking news reported in the New York Times. Yes, a federal judge has thrown out more than three dozen lawsuits claiming that the nation’s major telecommunications companies had illegally assisted in the wiretapping without warrants program approved by President George W. Bush after the 2001 terrorist attacks.

The good news - if there is any - is that the Electronic Frontier Foundation and the ACLU will appeal. The bad news is this decision pretty much falls in line with the stance that the Obama Administration (as did Bush/Cheney) - and Congress for the matter - has taken on warrantless wiretapping.

Before I get to the New York Times story, here's a few clips from a press relase from EFF had to say:

"We're deeply disappointed in Judge Walker's ruling today," said EFF Legal Director Cindy Cohn. "The retroactive immunity law unconstitutionally takes away Americans' claims arising out of the First and Fourth Amendments, 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."


"The immunity legislation that the court upheld today gives the telephone companies a free pass for flouting the law and violating the privacy rights of millions of their customers," said Ann Brick, ACLU of Northern California staff attorney.


"By passing the retroactive immunity for the telecoms' complicity in the warrantless wiretapping program, Congress abdicated its duty to the American people," said EFF Senior Staff Attorney Kurt Opsahl. "Now it is up to the Court of Appeals to stand up for the Constitution, and reverse today's decision."

The New York Times reports:

The ruling represents a major victory not only for AT&T and other carriers, which faced potential damages of billions of dollars if they lost the cases, but also for intelligence officials in Washington who had fought assertively in their defense. Officials from both the Bush and the Obama administrations maintained that the cooperation of the phone companies has been vital to national security and that penalizing them for their participation would jeopardize important surveillance operations.


The groups argued that the lawsuits were one of the few means available for the public to gain important information about the underpinnings of the wiretapping program, which allowed the National Security Agency to eavesdrop without court warrants on the international communications of Americans suspected of links to Al Qaeda.

They also argued that Congress had acted unconstitutionally, essentially taking over a role reserved for the courts in deciding the legal liability of the phone companies over accusations that they had violated the privacy rights of their customers.


In his ruling on Wednesday, Judge Walker said the legal protection carved out by Congress for the phone companies appeared unique in immunity law. “It creates a retroactive immunity for past, completed acts committed by private parties acting in concert with government entities that allegedly violated constitutional rights,” he wrote.

But he said the objections of the privacy groups were not strong enough to override the wishes of Congress. The ruling disappointed the groups suing the phone companies, in part because Judge Walker had shown some sympathy for the plaintiffs’ claims. He had refused the government’s efforts to invoke the “state secrets” privilege and had moved toward compelling the Justice Department to turn over documents.

Now, as Cindy Cohn, legal director for the Electronic Frontier Foundation, said, the one “silver lining” in this decision was that Judge Walker had kept intact related claims against the government over the wiretapping program, as well as a suit by an Oregon charity that says it has evidence it was a target of wiretapping without warrants.

Click here to read the rest of the article.

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