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Wiretap Decision Aims at Feds, Not Carriers

While most of us were in the throes of a self-induced butter/sugar-diet coma between Christmas and New Years', the 9th Circuit Court of Appeals announced two important decisions, covering a number of consolidated cases on the issue of warrantless wiretapping. The program, under which telecommunications service companies conducted warrantless eavesdropping on American citizens at the direction of the National Security Administration (NSA), allowed access to both domestic and international telephone communications and emails without warrant. These actions, which were initially were disclosed in 2005 by the New York Times, and confirmed by the President in early 2006, were originally approved by President George W. Bush, shortly after the tragic events of 9/11.

Initially when the Foreign Intelligence Surveillance Act (FISA, Pub.L. 95-511, 92 Stat. 1783, October 25, 1978) was enacted, it contained provisions which explicitly prohibited warrantless wiretapping. Given that the law was originally drafted in 1978 in the post-Watergate era, this is not surprising. Disregarding the law under the banner of national security, the administration of George W. Bush allowed for warrantless wiretaps, and only afterwards was FISA modified to allow for protection for those entities who partnered with the government without meeting the standards that had previously been in place to protect individual rights.

Thirty-three cases were consolidated and included in the decision abbreviated to Hepting v. AT&T Corp., (see which addressed the constitutionality of several provisions of the Foreign Intelligence Surveillance Act (FISA) and, most notably its 2008 amendments, which provided immunity for those telecommunications companies that provided access to their customer's information. The government had argued that it has the right to warrantless actions because of the overwhelming need to protect state secrets, but the Court disagreed. In fact, the bottom line of this decision is that the government can grant immunity to its "business accomplices," but not to itself on the grounds of "state secrets." If the constitutionality of such action is to be challenged, the courts provide the most effective way to make such challenges. So if you have a cause of action, take it to the government, not to AT&T!!

Two additional cases were pushed back to lower courts over other legal procedural matters raised during cases brought about as a result of the warrantless wiretaps. Specifically, the same judge who decided the previously mentioned case, also wrote on behalf of a unanimous 3-judge panel, that Carolyn Jewel and her co-plaintiff Virginia Shubert, San Francisco residents who claimed to have been harmed by the warrantless wiretapping, each had a case not based upon "generalized grievances," but that the facts and circumstances of their separate cases meet "the constitutional standing requirement of a concrete injury" (see As a result, Ms. Jewel's case has been placed back at the U.S. District Court, with instructions for the court to consider whether the government's assertion that state secrets privilege bars this litigation. In Ms. Shubert’s case, the court also pushed the case back to the District Court, but gave Ms. Shubert the opportunity to amend her complaint. For the non-legal types, this means "stay tuned."

In the meantime, if an entity, whether a business or individual, has a potential claim, it should be made against the government, not the commercial enterprise whose facilities and equipment were tapped. Providers are safe. The government, I suspect, will have more of these battles to fight.