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Telecom Spying Amnesty Unconstitutional, EFF Tells Court

By Ryan Singel, Kevin Poulsen, Sarah Lai Stirland, Kim Zetter, and David Kravets

The government's attempt to give retroactive immunity to the companies that helped the Bush administration's warrantless spying program violates the Constitution by ripping from the courts the power to hear citizens' grievances against the government, a rights group told a federal court Thursday.

The Electronic Frontier Foundation is also challenging the government's assertion to the court that the program wasn't a "dragnet" that pulled in the contents of millions of Americans, arguing that the government is playing word games.

The filing late Thursday night comes three months after the Democratically-controlled Congress gave in to political pressure and gave the Attorney General the power to tell a court to dismiss lawsuits against the nation's phone and internet companies.

To win dismissal, the attorney general must provide some evidence to the judge that the companies were given assurances the program was legal or that they did not help. After seeing these in secret, the judge has little choice but to dismiss the suits without being able to look at what the company did

In September, the government invoked that power in the EFF's case against AT&T, which is being argued along with three dozen other suits against the nation's telecoms in a San Francisco federal court. The EFF's lawsuit includes documentsfrom a former AT&T technician that the EFF claims describe a secret room in an AT&T building in San Francisco that is wired up to share raw internet traffic with the NSA.

The EFF's response brief(.pdf) argues that Congress had no right to pass such legislation, since the courts have a fundamental duty and right to hear citizens' complaints that the government violated their Constitutional rights.

"For if Congress can give the Executive the power to exclude the Judiciary from considering the constitutional claims of millions of Americans, can abdicate to the Executive the authority to change the law applicable in specific litigation, and can prevent the Judiciary from making an independent determination of the facts and law in specific litigation, then the Judiciary will no longer be functioning as a co-equal branch of government," the EFF's brief reads.

The government surprised many court watchers with the assertion in its September filing that its secret surveillance program was not a content dragnetand that all the companies being sued on such grounds should have the suits tossed.

The EFF calls that semantic wordplay. To document what exactly is known about the surveillance program, its secret rooms and its wholesale surveillance of Americans' internet communications, the group collected all that has been revealed about the warrantless spying ? from news accounts to Congressional testimony to White House press statements and filed them in eight large binders with the court.

The group then summarized(.pdf) for the court what is known about how the program worked, how much of Americans' communications were sucked into government databases and how the nation's top officials have continuously spoken in carefully chosen phrases in order to conceal the breadth of the operation.

The EFF's filing and documents were provided to U.S. District Court Judge Vaughn Walker.

According to the immunity bill, Congress authorized Mukasey to inform Judge Walker via classified and non-public documents about why the government is seeking immunity on behalf of the communication companies. According to the legislation, Walker has little power to deny Mukasey's request.

However, Walker, a libertarian-leaning Republican appointee, has so far not been sympathetic to the government, ruling early on that the suits could continue despite the government's claim that the suits would put the nation at risk.

Walker will hear oral arguments in early December.

Image: A copy of the exhibits the EFF filed with the court showing that the government's wiretapping was a dragnet. Credit: Ryan Singel/Wired.

Full post as published by Threat Level on October 17, 2008 (boomark / email).