Telecom customers may sue government over wiretapping, court says

Residential telephone customers can sue the government for allegedly eavesdropping on their private communications in a warrantless “dragnet of ordinary Americans,� a federal appeals court ruled Thursday.

Lawyers for customers of AT&T and other telecommunications providers hailed the ruling for allowing the courts to decide whether widespread warrantless wiretapping violated their constitutional rights.

“It’s huge. It means six years after we started trying, the American people may get a judicial ruling on whether the massive spying done on them since 9/11 is legal or not,� said Cindy Cohn, legal director for the Electronic Frontier Foundation, which was among those fighting for a day in court.

The three-judge panel of the U.S. 9th Circuit Court of Appeals, however, upheld dismissal of other cases that sought to hold the telecommunications companies liable, citing Congress’ decision to grant them retroactive immunity.

The Obama administration had succeeded two years ago in getting a federal judge in San Francisco to dismiss the lawsuits on grounds that state secrets in the fight against terrorism could be revealed in any court examination of the domestic spying operation. Justice Department lawyers reiterated that argument before the 9th Circuit panel in April.

But the panel reinstated the lawsuit brought by Petaluma, Calif., resident and author Carolyn Jewel and sent it back to U.S. District Court in San Francisco for trial, concluding that the plaintiffs had the right to sue the government.

“In light of detailed allegations and claims of harm linking Jewel to the intercepted telephone, Internet and electronic communications, we conclude that Jewel’s claims are not abstract, generalized grievances and instead meet the constitutional standing requirement of concrete injury,� said the 9th Circuit panel composed of three appointees of Democratic presidents — Judges Harry Pregerson, Michael Daly Hawkins and M. Margaret McKeown.

Cohn conceded that a long road remained for the plaintiffs: The government is expected to seek to assert the state-secrets privilege again before or during trial.

“The government has been swooping up millions and millions of communications by ordinary people, then sorting through them to figure out what they really want,� Cohn said. “This country was founded on the idea that you don’t just round up everybody and then sort out later who you want, that the government has to make a specific allegation against someone to spy on their communications.�

Jewel vs. National Security Agency was one of dozens of lawsuits on which the 9th Circuit panel ruled Thursday in two consolidated cases. The appellate judges upheld dismissal of the other grouped cases brought against AT&T and other telecom companies that assisted the government in gaining access to customers’ private records. The judges ruled that the companies had been retroactively immunized by an act of Congress three years ago that amended the 1978 Foreign Intelligence Surveillance Act to allow government agents to spy on foreign terrorism suspects without a warrant.

The 9th Circuit panel ruled that the 2008 FISA Amendments Act “passes constitutional muster,� rejecting plaintiffs’ arguments in 33 lawsuits that were consolidated in Hepting vs. AT&T.

Congress is empowered to enact or change laws, the appellate panel said, as it did three years ago in amending FISA. Partly in response to the customers’ 2006 lawsuits, Congress passed the FISA Amendments Act holding that no civil action may be brought “against any person for providing assistance to an element of the intelligence community.�

At a July hearing in Seattle, the Electronic Frontier Foundation urged the 9th Circuit to preserve both legal challenges by rejecting the government’s claims that state secrecy is necessary to protect the country from terrorism.

“The scope and legality of the NSA program has been the subject of widespread reporting and debate for half a decade — it is hardly a secret,� foundation attorney Kevin Bankston told the 9th Circuit judges. “Yet the government still claims that any judicial scrutiny of the NSA program would disclose ‘state secrets’ and harm national security. It’s time for these lawsuits to proceed and for the courts to be allowed to do their job and determine the legality of the NSA program.�

The foundation, backed by the ACLU, argued that the George W. Bush and Obama administrations had violated the separation of powers doctrine by essentially barring the courts from reviewing executive actions and allowing the attorney general to certify as national intelligence cases requests for access to customers’ private communications.

Dean Boyd, a spokesman for the U.S. Department of Justice, said the administration had no comment on either ruling.

The 9th Circuit’s ruling is almost certainly the end of the line for the plaintiffs seeking to hold the telecom companies liable. The conservative-majority Supreme Court would be unlikely to consider an appeal to review the decision. ACLU attorney Harvey Grossman said his clients had yet to decide how to proceed.

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