EFF Challenges Constitutionality of Telecom Immunity in Federal Court

[David Farber <dave () farber net>]

Begin forwarded message:

From: EFF Press <press () eff org>
Date: October 17, 2008 3:19:13 AM EDT
To: presslist () eff org
Subject: [E-B] EFF Challenges Constitutionality of Telecom Immunity in  
Federal Court
Reply-To: press () eff org

Electronic Frontier Foundation Media Release

For Immediate Release: Friday, October 17, 2008

Contact:

Kevin Bankston
  Senior Staff Attorney
  Electronic Frontier Foundation
  bankston () eff org
  +1 415 436-9333 x126

Kurt Opsahl
  Senior Staff Attorney
  Electronic Frontier Foundation
  kurt () eff org
  +1 415 436-9333 x106

EFF Challenges Constitutionality of Telecom Immunity in
Federal Court

Unconstitutional Law Cannot Shut Courthouse Door on
Americans' Privacy Claims

San Francisco - The Electronic Frontier Foundation (EFF)
Thursday challenged the constitutionality of a law aimed at
granting retroactive immunity to telecommunications
companies that participated in the president's illegal
domestic wiretapping program.

In a brief filed in the U.S. District Court in San
Francisco, EFF argues that the flawed FISA Amendments Act
(FAA) 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.  Signed into law earlier this year, the FAA allows for
the dismissal of the lawsuits over the telecoms'
participation in the warrantless surveillance program if
the government secretly certifies to the court that either
the surveillance did not occur, was legal, or was
authorized by the president.  Attorney General Michael
Mukasey filed that classified certification with the court
last month.

"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."

In the public version of his certification to the court,
Attorney General Mukasey asserted that the government had
no "content-dragnet" program that searched for keywords in
the body of communications.  However, the government did
not deny the dragnet acquisition of the content of
communications.  In support of its opposition, EFF provided
the court with a summary of thousands of pages of documents
demonstrating the broad dragnet surveillance of millions of
innocent Americans' communications.  Eight volumes of
exhibits accompanied the detailed summary, including
eyewitness accounts and testimony under oath.

"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 Opsahl.
"Intelligence agencies, telecoms, and the Administration
want to sweep this case under the rug, but the Constitution
won't permit it."

EFF is representing the plaintiffs in Hepting v. AT&T, a
class action lawsuit brought on behalf of millions of AT&T
customers whose private domestic communications and
communications records were illegally handed over to the
National Security Agency (NSA).  EFF has been appointed
co-coordinating counsel along with the American Civil
Liberties Union (ACLU) for all 47 of the outstanding
lawsuits concerning the government's warrantless
surveillance program.

The constitutional challenge is set to be heard on December
2.

For the full brief:
http://www.eff.org/files/filenode/att/opposition101608.pdf

For the summary of evidence:
http://www.eff.org/files/filenode/att/section1006summary101608_0.pdf

For more on the NSA spying:
http://www.eff.org/issues/nsa-spying

For this release:
http://www.eff.org/press/archives/2008/10/17

About EFF

The Electronic Frontier Foundation is the leading civil
liberties organization working to protect rights in the
digital world. Founded in 1990, EFF actively encourages and
challenges industry and government to support free
expression and privacy online. EFF is a member-supported
organization and maintains one of the most linked-to
websites in the world at http://www.eff.org/


    -end-

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