Groups Challenge Warrantless E-Mail Spying Law

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.

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."