Intellectual Property Law

Obama Administration Supports Telco Spy Immunity

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

The Obama administration vigorously defended congressional legislation late Wednesday that immunizes U.S. telecommunication companies from lawsuits about their participation in the Bush administration's domestic spy program.

It was the first time the Obama administration weighed in on a federal court challenge questioning the legality of the legislation President Barack Obama voted for as an Illinois senator in July. "Accordingly, the court should now promptly dismiss these actions," the Justice Department wrote (.pdf) U.S. District Judge Vaughn Walker of San Francisco late Wednesday.

Obama opposed immunity but voted for it because it was included in a new spy bill that gave the U.S. presidency broad, warrantless-surveillance powers.

Justice Department spokesman Matthew Miller said in a statement that the immunity bill "is the law of the land, and as such the Department of Justice defends it in court."

Walker is weighing a challenge to the immunity legislation in a lawsuit brought by the Electronic Frontier Foundation of San Francisco. Congress crafted the bill after Walker refused to dismiss separate challenges brought by EFF accusing the nation's telecoms of violating the rights of millions of Americans for allegedly funneling electronic communications to the National Security Agency without warrants.

The EFF claims Congress was prohibited from legalizing what the EFF termed was unconstitutional activity by the telecommunication companies. The government claimed immunity was necessary (.pdf) because the spying allegations threatened to expose state secrets.

The administration's legal move should come as no surprise. During his January confirmation hearings, Attorney General Eric Holder told senators that the Obama administration would defend telco immunity. "Unless there are compelling reasons, I don't think we would reverse course," Holder said.

Two weeks ago, Holder announced a review of litigation inherited from the Bush administration in which the so-called state-secrets privilege was invoked. Despite the review, the Obama administration is not deviating from its predecessor.

President George W. Bush acknowledged the existence of the so-called Terror Surveillance Program in 2005. It authorized the NSA to intercept, without warrants, international communications to or from the United States that the government reasonably believed involved a member or agent of al-Qaeda, or affiliated terrorist organization. Congress authorized such spying activity in July as part of the immunity legislation.

The EFF's lawsuit, however, includes documents from 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.

Judge Walker did not indicate when he would rule.

See Also:

• Analysis: NSA Spying Judge Defends Rule of Law, Congress Set to ...
• Judge: 'Sufficient Facts' Exist That U.S. Spied on Islamic Charity ...
• Judge: President's 'State Secrets' Privilege Can't Shield ...
• Obama Sides With Bush in Spy Case
• Judge Questions Telecom Immunity
• In Courtroom Showdown, Bush Demands Amnesty for Spying Telecoms ...
• Anti-Warrantless Spying Decision Colors Telecom Amnesty Debate ...
• Feds to Judge: Don't 'Second Guess' Bush Domestic Spy Program ...
• Judge Will Taste The Apple
• Judge Questions "State Secrets" Claim in ATT Spy Case
• Judge Forces Feds to Intervene in Spy Suits
• Secret Spying Showdown Hits Federal Appeals Court Wednesday ...

Full post as published by Threat Level on February 26, 2009 (boomark / email).