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  (Source: Quick Meme)
But court lifts previous ban on suing the government over warrantless wiretapping campaigns

If you have a problem with federal warrantless wiretapping campaigns, sue the government, not the telecoms.

That was the key message in the Thursday ruling handed down by the 9th U.S. Circuit Court of Appeals, a federal appeals court that covers high profile cases appealed in nine western states, including California.

I. EFF is Greenlit for Class Action Against the NSA

The decision was still a quasi-victory for the Electronic Frontier Foundation (EFF), who was leading the push against the warrantless wiretaps, at it prevents the most sweeping of protections on the domestic surveillance system, giving U.S. citizens at least one avenue to challenge the campaigns in court.

The EFF was less-than-thrilled that the court upheld the immunity for telecoms who served as the government's accomplices, helping federal agents spy on their customers.   The telecom immunity was granted by the "Protect America Act" of 2007 (Pub.L. 110-55S. 1927).

The EFF was seeking class action status for a lawsuit against AT&T, Inc. (T) and the U.S. National Security Agency (NSA).  The EFF accuses AT&T of conspiring with the NSA to divert its customers voice, SMS, and internet traffic into special secure rooms at its facility across the country, giving the NSA the ability to freely snoop on whatever private communications they pleased.

The operation was called "an unprecedented suspicionless general search" by the EFF, which accused it of being unconstitutional, based on the Fourth Amendment to the U.S. Constitution (part of the Bill of Rights), which states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

II. Lower Court Ruling is Partially Reversed, Telecom Immunity Restored

A lower court had granted the EFF permission to go ahead with a class action lawsuit against AT&T and NSA, prompting the U.S. Department of Justice (DOJ) to appeal to the 9th Circuit.

The 9th Circuit's decision partially reversed the lower court's ruling.  Unlike the lower court, it ruled that the government granting immunity to its business accomplices was Constitutional.  However, it refused the DOJ's request that the federal government also be made immune on "state secrets" grounds, saying lawsuits against the government were the place to challenge the Constitutionality of such programs.

[Image Source: Minding the Media]

Judge Margaret McKeown, a member of the three-judge appeals panel, writes (PDF; pg. 21589), "The federal courts remain a forum to consider the constitutionality of the wiretapping scheme and other claims."

The differentiation was an interesting one, in that it dealt a partial victory, partial loss to both the DOJ and EFF.  

It is important to note that the Appeals Court did not deliver an opinion on the legality of the warrantless wiretaps themselves.

III.  Most 2012 Presidential Candidates Support Warrantless Spying

The irony of the Protect America Act was that it modified the Foreign Intelligence Surveillance Act of 1978 ("FISA" Pub.L. (Public Law) 95-511, 92 Stat. (Statute at large) 1783, enacted October 25, 1978, 50 U.S.C. ch.36S. 1566) installing the kind of unregulated surveillance permissions that the FISA was originally designed to block at the time of its post-Watergate passage.

The FISA's original authors recognized the danger of abuse if unregulated wiretaps were granted to federal officials and police.  After, all at least one U.S. President -- Richard Nixon (R) -- used such powers to spy on his political rivals.

Despite the strict FISA President George W. Bush (R) openly defied the law in the post 9-11 (2001) era, resuming warrantless wiretapping. President Bush convinced Congress to retroactively legalize the effort by modifying the FISA.  With Congress's weight behind the unregulated domestic spying effort the President gained the unregulated spying power that had once led to the impeachment of President Nixon.

When new President Barack Obama took office, he promised reform and to cut back on the warrantless spying, but once elected that "hope" turned to "nope" as President Obama proved remarked "Bush-like" and pushed to expand the program and vigorously defend the immunity for cooperative telecoms.

Bush and Obama
President Obama and his predecessor President Bush agree on many things, including that the federal government should be granted unregulated spying on its citizens.
[Image Source:]

It appears unlikely that the warrantless monitoring is going anywhere, anytime soon.  Aside from President Obama support, most of the leading Republican candidates appear supportive of the practice, with many voting to support President Bush with the Protect America Act.  Of the major candidates, the only one who has voiced major concerns about the federal spying is Ron Paul (R).

Bachmann and Paul
Minn. Rep and Tea Party chief Michele Bachmann supports unregulated, warrantless federal wiretapping.  Ron Paul is the only major presidential candidate to oppose it.
[Image Source: (left) and (right)]

It is unknown exactly how many telecoms participated in the government's plot to spy on citizens.  However all three of America's largest cellular carriers -- AT&T; Sprint Nextel Corp. (S); and Verizon Wireless, the joint venture between Verizon Communications  Inc. (VZ) and Vodafone Group Plc. (LON:VOD)  -- were all listed as defendants in the EFF suit.

They are now free to resume helping President Obama and Congress spy on American citizens without warrant, without having to be legal responsible for their actions.

The EFF is contemplating whether to appeal the decision to restore the immunity provisions to a higher federal court.

Sources: 9th Circuit Court of Appeals, EFF

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RE: Ron Paul?
By Just Tom on 1/3/2012 8:40:17 PM , Rating: 2
All your abuse scenarios are indeed disturbing, I'll freely admit that. However, they are also illegal under the law as currently written. So you are postulating a scenario where some part of the executive has already gone rogue. Having already postulated such a scenario, a rogue executive, what exactly would stop whomever from conducting illegal wiretaps even if the law was changed? In your scenarios the executive has already demonstrated the will to break the law.

1. One possibility is that political officials and/or law enforcement officials could use the law for personal vendettas (e.g. someone fired your wife? wiretap them and get their dirt...)

This is an argument for harsh punishment of those who misuse warrantless wiretapping for personal reasons. I am not sure about federal law but most states have pretty significant criminal penalties for misuse of investigative powers. I would not be suprised if the feds had something similar. If not they should.

2. A more disturbing possibility, though, is that limited selective monitoring could be used to consolidate power to a single party or coalition (e.g. what Nixon was trying to do by bugging his political rivals). Such a monitoring scheme could be carefully limited to keep it out of the public eye. And by the time the abuser completed their power grab, it would be too late -- the process of free government would already have been subverted.

Possible, but extremely risky. What was the end result of Nixon's deeds? Jimmy Carter and a massive Democrat majority in both houses of Congress. And once again you are postulating someone already willing to violate the law; making all warrantless searches illegal would not change that fact. He or she would be willing to break the law to tighten his or her grip on power, I doubt adding one more felony to the list would limit that possibility.

That same process transformed numerous governments into totalitarian regimes in the 1900s. It always began with a more limited crackdown on political rivals, then expanded to a more general police state, once the opposition had been removed. Like the U.S. at present, many of those states were caught up in a nationalist fervor, which the power-grabbers perverted to consolidate power.

Please, give me one example of a viable law term democracy that has flipped into a police state. There are numerous examples of societies that do not have the pre-requisites for Democracy - a generally educated populace, a tradition of civil discourse, a free and vigilant press, political parties that represent diverse views - going from nominally democratic to totalitarian I struggle to think of a single instance where - absent outside events - a viable long term democracy has gone totalitarian. If you have any examples I'd love to see them.

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