Congress approved the FISA Amendments Act after a bruising battle this summer, and President Bush has signed it into law. Now comes the hard part: proving the constitutionality of the controversial law that essentially gives telephone companies legal protection from more than 40 civil lawsuits claiming the carriers provided customer telephone and e-mail records of millions of U.S. citizens--often without a warrant or subpoena--to the government.
Congress may have decided to grant
retroactive immunity to telecoms that helped the National Security
Agency eavesdrop on American's telephone calls and e-mail, but now it's time to
see what the courts have to say about the constitutionality of the law.
The EFF (Electronic Frontier Foundation) filed court
documents Oct. 17 in San Francisco challenging the legality of the
controversial law, claiming it violates the federal government's separation of
powers and strips innocent telecom customers of their rights without due
process of law.
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The
FISA Amendments Act essentially provides the telephone
companies legal protection from more than 40 civil lawsuits claiming the
carriers provided customer telephone and e-mail records of millions of U.S.
citizens -- often without a warrant or subpoena -- to the government.
Under the new FISA law, a district court will review the
authorizations the White House used to induce telephone carriers to participate
in the program. If the court determines the authorizations existed, the civil
cases pending against the carriers would not proceed. Attorney
General Michael Mukasey filed that classified certification with the court last
month.
"The
immunity law puts the fox in charge of the hen house, letting the Attorney
General decide whether or not telecoms like AT&T can be sued for
participating in the government's illegal warrantless surveillance," EFF
Senior Staff Attorney Kevin Bankston said in a statement.
In
Mukasey's public version of the certification to the court, the government
maintains that the feds had no "content-dragnet" program that
searched for keywords in the body of communications. However, the EFF notes,
the government did not deny the dragnet acquisition of the content of
communications.
"In
our constitutional system, it is the judiciary's role as a co-equal branch of
government to determine the scope of the surveillance and rule on whether it is
legal, not the executive's," Bankston said. "The Attorney General
should not be allowed to unconstitutionally play judge and jury in these cases,
which affect the privacy of millions of Americans."
As
part of its filing, the EFF provided the court with a summary of thousands of
pages of documents demonstrating the broad dragnet surveillance of millions of
Americans' communications. Eight volumes of exhibits accompanied the detailed
summary, including eyewitness accounts and testimony under oath.
Much
of the documentation came from Hepting v. AT&T, a class-action lawsuit
filed by the EFF on behalf of AT&T's customers whose private domestic
communications and communications records were handed over to the NSA. The EFF
has also been appointed as co-coordinating counsel along with the ACLU (American
Civil Liberties Union) for all 47 of the outstanding lawsuits concerning the
government's warrantless surveillance program.
"We
have overwhelming record evidence that the domestic spying program is operating
far outside the bounds of the law," EFF Senior Staff Attorney Kurt Opsahl
said in a statement. "Intelligence agencies, telecoms and the
Administration want to sweep this case under the rug, but the Constitution
won't permit it."
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