Wiretapping Lawsuit Is Announced

Published November 1, 2008

Attorneys for the Electronic Frontier Foundation (EFF) say they will forge ahead with a class-action lawsuit against AT&T and more than 30 other telecommunications companies they allege cooperated illegally with a U.S. government wiretapping program.

But first the organization must convince a court to toss out a new federal law granting those companies retroactive immunity from all such lawsuits.

The EFF challenge met resistance on September 17 from U.S. District Court Judge Vaughn Walker, who denied a request by EFF attorneys to immediately review the constitutionality of the Foreign Intelligence Surveillance Act [FISA] Amendments Act, which granted the immunity. Instead, Vaughn said the U.S. Justice Department would have a chance to argue for dismissing the EFF lawsuit.

“I do think we need first to see if the [FISA Amendments Act of 2008] applies to these cases, to let the government make its presentation in that regard … and then decide how the cases are to proceed, if at all,” Vaughn said.

If EFF’s challenge against the FISA Amendments Act fails, its class-action lawsuit against 36 telecom companies will effectively be over.

Constitutional Challenge

In August, EFF, a San Francisco-based nonprofit legal advocacy group, expanded its federal lawsuit to challenge the FISA Amendments Act of 2008 (H.R. 6304), which Congress passed on July 9.

EFF attorneys say the government will likely invoke sovereign immunity to deflect the new challenge. In a press statement, EFF Legal Director Cindy Cohn said regardless of the federal government’s legal strategy, the wiretapping program violates the Fourth Amendment’s prohibition against search and seizure without probable cause.

“By interfering with the ongoing deliberations of the judicial branch of the government, the [law’s] immunity provisions violate the Constitution’s insistence on a separation of powers,” said EFF activist Hugh D’Andrade.

Not Convinced

But according to John Eastman, a constitutional lawyer and dean of Chapman University Law School in Orange, California, the Fourth Amendment argument does not trump other constitutional prerogatives.

“The Fourth Amendment does not require warrants in all cases,” Eastman said. “Searches must be ‘reasonable,’ and it has never been the case that a warrant was required before intercepting enemy communications in time of war. It is ‘reasonable’ to conduct such searches. In fact, it is the obligation of the executive to do so.”

Eastman believes the EFF lawsuit should be dismissed based on the FISA Amendments Act’s clear immunity provisions. “I would argue that this is a matter between Congress and the president,” he said. “The judiciary has claimed too great a role thus far, and it is a huge problem.”

Walker on September 12 had tentatively ruled EFF’s class-action lawsuit against the federal government would go ahead.

Numerous Lawsuits Pending

The lawsuits against the federal government’s electronic surveillance efforts since the September 11, 2001 terrorist attacks are complex. EFF is representing the plaintiffs in Hepting v. AT&T, a class-action lawsuit filed in 2006 on behalf of AT&T customers whose private domestic communications and communications records were allegedly handed over to the National Security Agency in what the plaintiffs argue is a violation of the Fourth Amendment.

EFF is involved in 47 ongoing lawsuits concerning the federal government’s warrantless surveillance program.

To date, EFF’s 2006 lawsuit against AT&T, Verizon Communications, and other telecoms has survived numerous challenges. The lawsuit alleges the companies illegally colluded with federal authorities to violate consumers’ privacy without probable cause or warrants.

The Justice Department and EFF are negotiating when and how the government will move to have the case dismissed using the FISA Amendments Act’s immunity provision. EFF wants to challenge the legality of telecom immunity first, while government lawyers want to have the case dismissed and force EFF to appeal.

Ben Boychuk ([email protected]) writes from Rialto, California.