Intellectual Property Law

There's nothing unconstitutional about Congress putting an end to lawsuits accusing the nation's largest telecoms of secretly helping the Bush administration spy on Americans' communications, government and telecom lawyers told a federal court late Wednesday.

At issue is the recently enacted "telecom immunity" power which the Bush administration is trying to use to wipe out dozens of anti-spying lawsuits targeting AT&T, Verizon and Spring. The suits accuse the companies of violating federal privacy law when they allegedly secretly helped the government snoop into on Americans' phone calls, phone records and emails.

The government played the immunity card in the Electronic Frontier Foundation's case against AT&T in September. That suit, along with some three dozen others, are being heard in by Chief Judge Vaughn Walker of the Northern District of California's federal court.

The San Francisco-based rights group responded in October, arguing that the Congress has no power to interfere with with the courts' fundamental duty to hear citizens' complaints that the government violated their Constitutional rights.

Afer months of acrimonious and dramatic debate, Congress included that controversial provision in July's FISA Amendments Act, which also largely legalized the Bush Administration's warrantless wiretapping program.

The government and the telecoms say it's all legal and that Congress can tinker with ongoing legislation without violating the Constitution.

"So long as Congress has amended the law to be applied by the courts, and is not otherwise attempting to overturn prior final judgments [...], there is nothing unconstitutional about such legislation.  Indeed, the fact that a statute is directed specifically at certain cases (or even a specific court ruling), is of no
constitutional significance," the Justice Department wrote in its filing (.pdf).

The provision seems to make dismissal a certainty: Judge Walker has to throw out the case if the Attorney General sends a letter saying a given company did not participate or did so but only when told that government leaders thought the program was legal.

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.

Telephone companies routinely help the government wiretap suspected criminals and spies and their equipment is required by law to be wiretap friendly. But federal law says companies also have to get a valid court order before turning on a wiretap.

Shortly after 9/11, the Bush administration decided those laws didn't apply to the president during wartime and secretly began listening into Americans' international calls and combing through their phone records to find suspected terrorists.

The government says the program prevented terrorist plots, but news stories indicate the FBI quickly grew tired of running down leads from the program that would lead them to a pizza delivery place.

The EFF also challenged the government's invocation of the immunity provision, questioning the truthfulness of  Attorney General Michael Mukaskey's claim that the program wasn't a "dragnet."

To back that claim, the EFF filed a lengthy summary (.pdf) of what is known about the program in order to prove that the nation's spooks were sucking in billions of Americans' emails and phone calls. The government responded on Wednesday with a classified rebuttal.

The government, the telecoms and the EFF will debate the issue on December 2 in a San Francisco court room.

Photo: Joseph Tate/Flickr