Law Protecting AT&T, Verizon in Wiretapping Cases Upheld

By Josh Long

A federal appeals court on Thursday found constitutional a law that gave retroactive immunity to AT&T Inc., Verizon Communications Inc. and other telecommunications carriers that assisted the U.S. government with intelligence gathering following the Sept. 11, 2001 terrorist attacks.

Section 802 of the Foreign Intelligence Surveillance Act is constitutional and does not violate Article I or III of the U.S. Constitution or the Due Process Clause of the Fifth Amendment, held judges Harry Pregerson, Michael Daly Hawkins and M. Margaret McKeown of the U.S. Court of Appeals of the Ninth Circuit.

Im very disappointed. I think the court reaches to try to put lipstick on a pig here,” Cindy Cohn, legal director of the Electronic Frontier Foundation, told The Associated Press. I think what Congress did was an abdication of its duty to protect people from illegal surveillance,” added Cohn, who argued the case before the 9th Circuit.

The constitutionality of the law was presented to the 9th Circuit after a district court dismissed dozens of lawsuits that were filed against national telecommunications companies following reports in December 2005 that the National Security Agency engaged in a warrantless eavesdropping program with the cooperation of AT&T, Verizon and others. 

In partial response to such lawsuits, Congress passed legislation that protected telecom companies from liability under a number of circumstances. Section 802(a) of the Foreign Intelligence Surveillance Act, which is known as the FISA Amendments Act of 2008, bars civil actions in federal or state court against any person providing aid to the intelligence community if the Attorney General certifies that one of a number of conditions has been satisfied.

Soon after Section 802(a) took effect, former U.S. Attorney General Michael Mukasey certified that the claims brought against the telecommunications providers fell within at least one provision of the law, and the district court granted requests to dismiss the complaints.

The appeals included 33 actions filed against telecom companies and dating back to 2006.

The plaintiffs, whose counsel included the American Civil Liberties Union, argued that the law was unconstitutional for a number of reasons. But in a published opinion, Circuit Judge McKeown rejected all their arguments.