Tuesday, January 3, 2012
Ninth Circuit Upholds Immunity for Telecommunications Companies that Assisted in Warrantless Wiretapping
In re National Security Agency Telecommunications Records Litigation is a big case. How big? The caption alone takes up over twenty pages in the 9th Circuit's most recent opinion. The basic facts are fairly familiar. During he Bush administration, the National Security Agency (NSA) created a program called the "Terrorist Surveillance Program," which plaintiffs, supported by journalistic accounts, allege permitted warrantless wiretaps of their communications. Plaintiffs further allege that the telecommunications companies assisted the government in undertaking such warrantless surveillance of U.S. citizens who happened also to be their customers.
Congress stepped in to assist these good corporate citizens which had after all just done their part to aid their country and the NSA. In 2008, it amended the Federal Intelligence Surveillance Act (FISA) to grant effective immunity to the telecommunications companies against suits such as the ones consolidated in this case. At issue in this appeal was only Plaintiffs' challenge to the constitutionality of that grant of immunity.
The Ninth Circuit upheld the constitutionality of the amendment to FISA. Plaintiffs' claims against the government can proceed -- at least until they are dismissed on national security or state secrets grounds further down the road.