Court rules for telecoms' role in domestic eavesdropping

In mixed decisions with important implications for government spying on US citizens, the Ninth US Circuit Court of Appeals in San Francisco has ruled that telecommunications companies have the constitutional right to legal immunity for helping the government eavesdrop on e-mail and telephone communications.

But in a separate opinion, the three-judge panel also ruled Thursday that telecom customers can sue the federal government for eavesdropping on private telephone and e-mail communications.

Ruling in Jewel v. National Security Agency (a case brought by Carolyn Jewel of Petaluma, Calif.), the Ninth Circuit judges wrote: “In light of detailed allegations and claims of harm linking Jewel to the intercepted telephone, Internet and electronic communications, we conclude that Jewel's claims are not abstract, generalized grievances and instead meet the constitutional standing requirement of concrete injury.”

The case was brought on Ms. Jewel’s behalf by the Electronic Frontier Foundation in San Francisco, a nonprofit digital-rights advocacy and legal organization founded in 1990.

"Since the dragnet spying program first came to light, we have been fighting for the chance to have a court determine whether it is legal," EFF legal director Cindy Cohn said in a statement. "The Ninth Circuit has given us that chance, and we look forward to proving the program is an unconstitutional and illegal violation of the rights of millions of ordinary Americans."

Under the Bush administration’s Terrorist Surveillance Program, federal officials bypassed the 1978 Foreign Intelligence Surveillance Act (FISA), which required the executive branch to obtain a court-authorized warrant from a special high-security court before engaging in surveillance that might include individuals in the United States.

In January, US District Judge Vaughn Walker in San Francisco dismissed a lawsuit seeking to hold the government accountable for secret, warrantless electronic surveillance conducted in the US for four years after the 9/11 attacks. Plaintiffs failed to offer proof that they had been targeted by the wiretap program, Judge Walker ruled. This week, the Ninth Circuit panel reversed that ruling.

Although the Justice Department has not commented on this week’s ruling, the federal government can be expected to appeal to the US Supreme Court in this case. Given the makeup and history of the current high court regarding national security issues, it is unlikely that the decision relative to telecom companies’ immunity will be reversed or even taken up.

In 2008, Congress granted telecommunications companies – including AT&T, Sprint Nextel, Verizon Communications Inc., and BellSouth Corp. – immunity for cooperating with the government’s intelligence-gathering activities. Lawmakers amended FISA to allow government spying on foreign terrorism suspects without first obtaining a court warrant.

At the time, then-Sen. Barack Obama voted for the granting of immunity to telecom companies, and the Obama administration continues to agree with the Bush administration that state secrets related to the war on terrorism are at stake.

In 2006, USA Today reported that “The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon, and BellSouth.”

Citing “people with direct knowledge of the arrangement,” the newspaper reported, “The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans – most of whom aren't suspected of any crime.”

“This program does not involve the NSA listening to or recording conversations,” the report continued. “But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.”

Privacy advocates expressed disappointment at the Ninth Circuit’s ruling regarding immunity for telecom companies.

"By passing the retroactive immunity for the telecoms' complicity in the warrantless wiretapping program, Congress abdicated its duty to the American people," EFF senior staff attorney Kurt Opsahl said in a statement. "It is disappointing that today's decision endorsed the rights of telecommunications companies over those of their customers."