EFF Takes Aim at Telco Immunity

The Electronic Frontier Foundation has long been in the lead in challenging the Bush administration’s claims of limitless authority to conduct warrantless surveillance. When the administration went to the major telecommunications companies and demanded unfettered access to private data on their customers, every company but one rolled over immediately. That gave EFF the opening it needed.

EFF filed multiple lawsuits on behalf of private plaintiffs alleging that telcos violated  federal statutes prohibiting the interception and dissemination of certain information designated private. In a number of those cases EFF also alleged that the telcos were acting as de facto agents of the U.S. government and were therefore liable for violating their customers’ constitutional rights.

The telcos had much at stake in those cases. Of primary concern was the hundreds of millions of dollars in statutory damages they’d have to pay if EFF could prove its allegations.

The Bush administration came to the industry’s rescue, intervening in all the lawsuits to demand outright dismissal. Allowing any of the lawsuits to continue, the Justice Department claimed, would violate the common law military and state secrets privilege. What was the state secret? Pretty much everything was a state secret, to hear the administration tell the tale. Not just the alleged information allegedly obtained but also the alleged fact that the government had allegedly requested such alleged information was a state secret. Allegedly.

The litigation proceeded while administration pressed Congress hard for legislation granting telcos retroactive immunity for participating in the administration’s unlawful surveillance scheme. Congress caved in July, passing the FISA Amendments Act of 2008 (“FAA”). The immunity provision, Section 802 (codified at 50 U.S.C. § 1885a), states that “a civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be promptly dismissed, if the Attorney General” supplies certain information to the court in which the case is pending. Generally speaking, the AG must certify to the court that the company providing assistance acted in response to a court order or a request/directive from the executive branch issued in accordance with certain statutes. The court must dismiss the case unless the AG’s “certification is not supported by substantial evidence[.]” In the parlance of evidence law, “substantial evidence” means more than a scintilla but less than a preponderance. (Not especially helpful, I know.)

Many of the cases are grouped together in a multi-district litigation proceeding pending in the U.S. District Court for the Northern District of California. The Justice Department is invoking Section 802 in an effort to have all those cases dismissed.

EFF is opposing the dismissal on a variety of grounds. Its brief (pdf, 61 pages) is available here. EFF is arguing that: (1) Congress lacks the power to eliminate the plaintiffs’ First and Fourth Amendment claims by statute; (2) Section 802 violates constitutional separation of powers principles by unconstitutionally delegating legislative power to the executive branch and by unlawfully usurping the judiciary’s fact-finding role; (3) Section 802 unconstitutionally deprives the plaintiffs of property and liberty without due process of law; (4) the secrecy provisions of Section 802 violates the First Amendment right of access to documents in civil cases and Article III’s requirement that courts decide whether a sufficiently compelling interest warrants foreclosing such access; and (5) even if Section 802 were constitutional, the government has failed to meet its burden of supporting its dismissal demand with “substantial evidence.”

A hearing is set for December 2, 2008. We’ll have more information as soon as it’s available.

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