Lawyers at the Electronic Frontier Foundation launched another attack against the FISA Amendments Act Friday, challenging the constitutionality of its telecom immunity provision in a San Francisco U.S. District Court.
The challenge is the latest in a long-running opposition to the U.S. government’s decision to give retroactive immunity from lawsuits to the nation’s telecommunications companies, for their help in setting up a nationwide, legally-questionable warrantless wiretap on U.S. communications infrastructure.
After numerous attempts – and with sunset provisions in a stopgap law rapidly approaching expiration – Congress hastily passed the FISA Amendments Act last July, where it was almost immediately signed into law by President Bush. Chiefly, the Act updates aging spying laws and modernizes the 1970s-era Foreign Intelligence Surveillance Act – giving U.S. intelligence agencies a number of new abilities while adding new limitations to work under. The telecom immunity provision was added after the Bush Administration promised to veto any version of the bill without it.
“We have overwhelming record evidence that the domestic spying program is operating far outside the bounds of the law,” said EFF Senior Staff Attorney Kurt Opsah, referring to the thousands of pages of evidence (PDF) it has to support its case. “Intelligence agencies, telecoms, and the Administration want to sweep this case under the rug, but the Constitution won't permit it.”
Attorney General Michael Mukasey denied an official “content-dragnet” program in his certification to the Court; however, the EFF says he did not deny the “dragnet acquisition of the content of communications.”
“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,” adds 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.”
Telecom immunity is necessary, say its supporters, because many providers were staring down the barrel of a dozen or more lawsuits for complying with a special-case, 9/11-era government terror-fighting request.
Critics see the immunity provision as part of a larger, nationwide erosion of citizens’ privacy – as well as a blatant violation of U.S. wiretapping laws, which prohibit spying on most types of domestic communications without a court-ordered warrant.
The EFF filed its initial lawsuits against the program in February 2006, and frustrated ex-AT&T technician Mark Klein leaked a treasure trove of official documentation to the press later that year.