Intellectual Property Law

The incoming Obama administration will vigorously defend congressional legislation immunizing U.S. telecommunication companies from lawsuits about their participation in the Bush administration's domestic spy program.

That was the assessment Thursday by Eric Holder, President-elect Barack Obama's choice for attorney general, who made the statement during his confirmation hearings before the Senate Judiciary Committee. A court challenge questioning the legality of the legislation is pending in U.S. District Court in San Francisco -- where the judge in the case wanted to know what the Obama administration's position was.

"The duty of the Justice Department is to defend statutes that have been passed by Congress," Holder told Sen. Orin Hatch (R-Utah), who asked whether the Obama administration would continue the legal fight to uphold the legislation that the Electronic Frontier Foundation is seeking to overturn.

"Unless there are compelling reasons, I don't think we would reverse course," Holder added.

At a San Francisco hearing in EFF's case last month, U.S. District Judge Vaughn Walker wondered aloud whether the incoming Obama administration would continue to defend the legislation, which passed in July. Obama opposed immunity but voted for it because it was included in a new spy bill that gave the Bush administration broad warrantless-surveillance powers.

"We are going to have a new attorney general," Walker said from the bench, wondering whether he should delay a decision, pending guidance from Obama. "Why shouldn't the court wait to see what the new attorney general will do?"

The EFF is also accusing the nation's telecoms of funneling Americans' electronic communications to the Bush administration without warrants in the aftermath of the Sept. 11, 2001, terror attacks.

Holder's comments came the same day a secret federal appeals court,  the Foreign Intelligence Surveillance Court of Review, released a declassified opinion (.pdf) approving 2007 legislation that gave the government broad powers to eavesdrop on international communications ? even those in the United States ? without warrants.

The court, hearing a challenge to the Protect America Act from a telecommunications company it did not name, said the Fourth Amendment to the U.S. Constitution was not breached because the right to be free from unreasonable searches did not apply to foreign intelligence gathering.

The August 2007 Protect America Act expired six months after its passage and was revived as part of the immunity legislation Holder addressed Thursday. The secret court's opinion did not address the Bush administration's once-secret eavesdropping program ? which was not authorized by Congress ? initiated in the aftermath of the 2001 attacks.

The Justice Department lauded the opinion, which was rendered in August but just released Thursday after it was declassified. "The Court of Review upheld the lawfulness of the directives, concluding that the surveillance at issue fell within the foreign-intelligence exception to the warrant requirement and was otherwise reasonable under the Fourth Amendment," the department said.

The immunity legislation at issue was crafted after Walker had refused to dismiss the lawsuit EFF brought in 2006 against AT&T, accusing the telco of violating its customers' civil liberties. At the time, Walker's initial decision allowing the case to go forward was idling on appeal before the San Francisco-based 9th U.S. Circuit Court of Appeals ? which dismissed the case as moot after President Bush signed the immunity bill.

All of the nation's leading telecommunication companies have been added to the litigation ? the merits of which have never been decided.

The Bush administration had argued that the original case should be dismissed on the grounds that it threatened to expose government secrets, a legal privilege judges routinely rubber-stamp. The EFF, in a bid to revive the lawsuit, challenged the immunity legislation on the  grounds that Congress was prohibited from legalizing what the EFF termed was unconstitutional activity by the telecommunication companies.

Walker's decision on the immunity legislation is pending.

See Also:

• Judge Questions Telecom Immunity
• Attorney General Pulls Immunity Trigger, Denies 'Dragnet ...
• Is Retroactive Telecom Immunity Unconstitutional?
• In Courtroom Showdown, Bush Demands Amnesty for Spying Telecoms ...
• Obama Will Fight For Wiretap Immunity, Bush Lawyer Tells Judge ...
• Dems Agree to Expand Domestic Spying, Grant Telecoms Amnesty ...
• Top Spy Must Release Telecom Immunity Meeting Docs ASAP
• Feds to Judge: Don't 'Second Guess' Bush Domestic Spy Program ...
• EFF Moving to Uncover Telco Immunity Lobbying
• Judge: President's 'State Secrets' Privilege Can't Shield ...