Intellectual Property Law

Judge Tosses Telecom Spy Suits

By David Kravets

SAN FRANCISCO — A federal judge on Wednesday dismissed lawsuits targeting the nation’s telecommunication companies for their participation in President George W. Bush’s once-secret electronic eavesdropping program.

In his ruling, U.S. District Judge Vaughn Walker upheld summer legislation protecting the companies from the lawsuits. The legislation, which then-Sen. Barack Obama voted for, also granted the government the authority to monitor American’s telecommunications without warrants if the subject was communicating with somebody overseas suspected of terrorism.

AT&T was the first of many telcos sued for helping the NSA spy on Americans without warrants

Bush acknowledged the so-called Terror Surveillance Program in December 2005, and claimed as chief executive, his war powers gave him the authority to spy without court authorization.

Walker’s decision (.pdf), if it survives, ends more than three years of litigation accusing the nation’s carriers of funneling Americans’ electronic communications to the Bush administration without warrants in the aftermath of the Sept. 11, 2001 terror attacks. The ruling also means that the public may never know how the Bush White House coaxed the telecoms to participate in the program without court warrants, as the Electronic Frontier Foundation alleged in a lawsuit lodged in federal court here three years ago.

“Congress has manifested its unequivocal intention to create an immunity that will shield the telecommunications company defendants from liability in these actions,” Walker wrote.

The legislation at issue in the case was crafted after Walker had refused to dismiss the lawsuit the EFF brought in 2006 against AT&T. 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, meaning the merits of the lawsuit have never been addressed. All of the nation’s leading telecommunication companies have been added to the litigation.

The Bush administration and then the Obama administration argued that the original case should be dismissed on 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 grounds that Congress was prohibited from legislating what the EFF termed was unconstitutional activity by the telecommunication companies.

“We’re disappointed,” said Cindy Cohn, the EFF’s legal director. “We think the judge is wrong.”

She said the EFF would appeal the decision to the San Francisco-based 9th U.S. Circuit Court of Appeals.

The EFF crafted the initial lawsuit around a former AT&T technician’s documentation suggesting that AT&T customers’ electronic communications were siphoned to the National Security Agency without warrants.

Still, while the lawsuits targeting the telecommunications appear all but dead, litigation testing the president’s authority to spy on Americans without warrants is alive and well in a different lawsuit before Walker.

That suit involves two American lawyers accidentally given a “top secret” document showing they were eavesdropped on by the government when working for a now-defunct Islamic charity in 2004. The case tests whether a sitting U.S. president may bypass Congress ? in this case, whether President Bush abused his power by authorizing his secret spying program in the aftermath of the Sept. 11 attacks.

During a hearing before Walker in that case hours after his telecom ruling, the judge decided to set a Sept. 1 hearing in which he’ll decide whether the charity’s former lawyers have legal standing to bring the lawsuit.

At least for now, the once-secret documents are not part of the case because the government has declared them a state secret. Walker, despite his earlier threats, on Wednesday refused to order them as part of the case.

Two weeks ago, he also suggested he might summarily decide the lawsuit against the government as a sanction for its refusal to help craft a so-called protective order that would lead to the documents being disclosed to the plaintiffs’ attorneys only.

Instead, Walker said Wednesday he would hold a September hearing and rule on whether the case could proceed and be litigated on the merits without the documents.

“The content of the sealed document will not be a part of the court’s decision,” Walker said.

Either way, the judge noted that the appellate courts, and perhaps the Supreme Court, would have the final say on the matter.

“We’ll just see how this plays out,” Walker said from the bench.

See Also:

• Judge: ‘Sufficient Facts’ Exist That U.S. Spied on Islamic Charity …
• Analysis: NSA Spying Judge Defends Rule of Law, Congress Set to …
• In Courtroom Showdown, Bush Demands Amnesty for Spying Telecoms …
• Thoughts of Storm Troopers Filling Spy Case
• Showdown in NSA Wiretap Case: Judge Threatens Sanctions Against …
• Anti-Warrantless Spying Decision Colors Telecom Amnesty Debate …
• Obama Administration: Wiretapping Legal Challenge Must Die …

Full post as published by Threat Level on June 03, 2009 (boomark / email).