EFF, ACLU Vows to Appeal Dismissal of Warrantless Wiretapping Case

It’s been a very long battle between civil rights groups and the NSA, but after all this long and drawn out battle, it appears as though civil rights organizations have experienced a setback in the warrantless wiretapping cases going on in the United States. Still, the battle is far from over as they have vowed to appeal the dismissal in the 9th circuit court of appeals.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

If one were to go clear back into June of 2008, the month that saw the passage of the Protect America Act, that still doesn’t even get close to the beginning of this whole ordeal (you’d have to go clear back to when Mark Klein blew the whistle on AT&T clear back in 2007 (many argue that the case goes even further back over a report in the New York Times). From court mandated sealed documents to government secrets to lawsuits to legislation to block lawsuits to the constitution, the warrantless wiretapping case has taken many twists and turns throughout the years to get us to where we are today.

This latest setback appears to be a new blow to privacy advocates and civil rights groups alike among others. It’s new legal affirmation that the government doesn’t need a warrant to put a wiretap on anyone inside or outside the United States. Then again, what exactly does the constitution mean when it says that the law guards against unlawful search and seizures anyway? There may be similar questions that could be brought in when civil rights groups appeal their lawsuits.

In the case so far, a judge has dismissed the lawsuits and upheld legislation that granted telecom immunity over warrantless wiretapping on behalf of the NSA.

“Congress has manifested its unequivocal intention to create an immunity that will shield the telecommunications company defendants from liability in these actions,” Judge Walker Wrote (PDF)

In an EFF Press Release:

“We’re deeply disappointed in Judge Walker’s ruling today,” said EFF Legal Director Cindy Cohn. “The retroactive immunity law unconstitutionally takes away Americans’ claims arising out of the First and Fourth Amendments, violates the federal government’s separation of powers as established in the Constitution, and robs innocent telecom customers of their rights without due process of law.”

“The immunity legislation that the court upheld today gives the telephone companies a free pass for flouting the law and violating the privacy rights of millions of their customers,” said Ann Brick, ACLU of Northern California staff attorney.

In today’s ruling, Judge Walker left the door open to accountability for the government, holding that “plaintiffs retain a means of redressing the harms alleged in their complaints by proceeding against governmental actors and entities who are, after all, the primary actors in the alleged wiretapping activities.” EFF is also suing the government for the illegal surveillance in a separate case, Jewel v. NSA.

“By passing the retroactive immunity for the telecoms’ complicity in the warrantless wiretapping program, Congress abdicated its duty to the American people,” said EFF Senior Staff Attorney Kurt Opsahl. “Now it is up to the Court of Appeals to stand up for the Constitution, and reverse today’s decision.”

At issue is FISAAA (Foreign Intelligence Surveillance Act Amendments Act or FISA Amendments Act) which was passed by Bush in 2008. Currently, the law indicates that Internet Service Providers can spy on their users on behalf of the government without a warrant, regardless of where they are in the world and where they live. In question, is whether or not this law is even constitutional.

Drew Wilson on Twitter: @icecube85 and Google+.

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