AT&T, et al Privacy Suit Dies as Supreme Court Refuses to Hear Appeal

NEWS ANALYSIS: The U.S. Supreme Court has declined to hear a lawsuit against phone companies that allowed law enforcement authorities to access their networks without court-issued warrants for surveillance regarding suspected terrorist threats.

Civil liberties advocates who have filed thirty-three lawsuits against U.S. phone companies charging that they had allowed warrantless surveillance have had their day in federal court and have been brought up short yet again. The U.S Supreme Court declined to hear their case without comment.

The case, Hepting et al vs. AT&T Corp et al, had previously been heard in the U.S. Court of Appeals for the Ninth Circuit in San Francisco. The Court of Appeals upheld a lower court decision dismissing the actions against AT&T and several other phone companies. The Supreme Court’s decision lets that ruling stand.

The lawsuits questioned the constitutionality of the 2008 amendments to the Foreign Intelligence Surveillance Act (FISA), which allowed the Attorney General to certify that such surveillance was necessary and in addition, gave retroactive protection to the phone companies who allowed it against any existing or future legal action. The U.S. Court of Appeals said that the law was constitutional and Hepting, et al. appealed it. You can watch the proceedings here.

The move by the Court of Appeals and by the Supreme Court is consistent with practices adopted by the government since the Sept. 11, 2001 terrorist attacks. The move towards allowing greater surveillance, frequently without warrants, has been fought by civil liberties groups including the Electronic Frontier Foundation and the American Civil Liberties Union.

The ruling by the Court is closely related to other lawsuits challenging the ability of the National Security Agency to conduct warrantless wiretapping in cases involving people outside of the U.S., even in circumstances where one of the parties was in the U.S. at the time. By declining to hear the appeal of the Hepting vs. AT&T case, the Court upheld the constitutionality of FISA.

Among other things, the law provides immunity to phone companies and others who assist the intelligence community in using wiretaps to track down terrorists. The fear, as frequently stated by opponents, is that such wiretapping is a violation of the Fourth Amendment of the U.S. Constitution which protects individuals against unreasonable searches and seizures. The Court’s decision not to hear the appeal basically puts this lawsuit to rest permanently.

However the EFF hasn’t stopped its actions against the government. In a related case which also challenges the FISA and its subsequent amendments, the EFF has filed suit against a number of federal agencies, including former President George W. Bush, challenging the NSA’s wiretapping authority.

The EFF is charging that the government was conducting a “domestic dragnet” filed a complaint in the U.S. District Court for the Northern District of California asking that the court overturn the law allowing the NSA to conduct domestic surveillance.

Then, on Oct. 9, immediately after the Supreme Court declined to hear the appeal of Hepting vs. AT&T, the EFF’s attorney Cindy Cohn and the Plaintiff’s attorney Kurt Opsahl, filed motions with the District Court asking that they be allowed to proceed with discovery on the NSA domestic surveillance case. The plaintiffs include the same Tash Hepting whose suit against AT&T and other phone companies was blocked by the courts.

Cohn announced that the organization had filed these briefs, and also expressed disappointment that the Supreme Court had declined to review the lower court’s decision. “Sadly, yesterday the Supreme Court also decided not to review EFF's case against AT&T, Hepting v. AT&T, for the same spying program,” Cohn said in a prepared statement.

“The Supreme Court let stand a 9th Circuit decision that upheld the so-called "retroactive immunity" for the telecommunications companies, which passed Congress in 2008, two years after EFF filed suit against the telecom companies. We're disappointed in the Supreme Court's decision, since it lets the telecommunications companies are off the hook for betraying their customers' trust and violating the law by handing their communications and communications records to the NSA without a warrant,” Cohn's statement said.

The EFF is by no means the only organization seeking to block or at least review the court’s decisions on domestic spying. In August the Electronic Privacy Information Center urged that the case be allowed to continue and that it be reviewed by the FCC and other Congressional committees. The ACLU, meanwhile, has been fighting the law since it first went into effect, before Congress decided to make the immunity retroactive.

Unfortunately for the EFF and the ACLU, the motions have little chance of success, as has been outlined in the Supreme Court’s own blog. The position of the court has been consistent. If congress passed the law and the President signed it, then it’s the law unless it’s specifically prohibited by the Constitution. While the Fourth Amendment does protect against unreasonable search and seizure, it’s clear that the Court doesn’t consider wiretapping in the search for terrorists to be unreasonable.

Other related laws, including the Patriot Act, have been upheld as being necessary in the fight against terrorism. Likewise, rules that allow phone tapping of a person rather than a specific phone line have been fielded and upheld. This is one of those situations in which the necessary fast action in the fight against terrorists is being balanced against the rules made in times when such urgency wasn’t necessary. Right now, urgency seems to be winning.

Wayne Rash

Wayne Rash

Wayne Rash is a freelance writer and editor with a 35 year history covering technology. He’s a frequent speaker on business, technology issues and enterprise computing. He covers Washington and...