With Congress granting what amounts to retroactive immunity for telephone companies that participated in the White House's warrantless domestic spying program, the Electronic Frontier Foundation turned to the courts Sept. 18 to stop the continuing surveillance of Americans' e-mails and telephone calls.
The EFF has already sued AT&T in a 2006 class action lawsuit to stop the telecommunications giant's participation in the surveillance program. The new legal action targets the NSA (National Security Agency) and other government agencies in addition to the individuals responsible for creating, authorizing and implementing the spying program, including President George W. Bush and Vice President Dick Cheney.
Other individuals named in the lawsuit include former Attorney General and White House Counsel Alberto Gonzales and Cheney's chief of staff David Addington.
"In addition to suing AT&T, we've now opened a second front in the battle to stop the NSA's illegal surveillance of millions of ordinary Americans and hold personally responsible those who authorized or participated in the spying program," Kevin Bankston, EFF's senior attorney, said in a statement.
The telcos contend that they relied on existing federal, state and local laws and assurances from the highest level of government when providing access to consumers' personal telephone calls and e-mail without a subpoena.
"For years, the NSA has been engaged in a massive and massively illegal fishing expedition through AT&T's domestic networks and databases of customer records. Our goal in this new case against the government, as in our case against AT&T, is to dismantle this dragnet surveillance program as soon as possible," Bankston said.
The EFF's primary evidence in the new lawsuit, Jewel v. NSA, relies primarily on the same evidence as the AT&T class action lawsuit, including whistleblower Mark Klein's disclosure of undisputed documents that AT&T has routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA. Klein is a former AT&T telecommunications technician.
The AT&T case is now stalled in federal court and is expected to continue well into 2009.
"Demanding personal accountability from President Bush, Vice President Cheney and others responsible for the NSA's dragnet surveillance of ordinary Americans' communications is the best way to guarantee that such blatantly illegal spying will not be authorized in the future," said EFF Legal Director Cindy Cohn. "Our lawsuit today should sound a clear warning to future occupants of the White House: If you break the law and violate Americans' privacy, there will be consequences."
In July, the U.S. Senate voted to grant retroactive immunity to telephone companies that participated in the White House's warrantless domestic spying program. The 69-28 vote came after the Senate defeated three amendments all aiming either to remove or modify the immunity provision in the Foreign Intelligence Surveillance Act.
Democratic presidential nominee Barack Obama voted for the three amendments to let civil lawsuits proceed against the carriers but voted for the overall bill. Republican presidential nominee John McCain skipped the vote. The House approved the legislation June 20.