Judge Mulls Constitutionality of Telecom Immunity Law

The Electronic Frontier Foundation has challenged the constitutionality of a federal law providing immunity to telecom companies that allegedly shared information about U.S. citizens with security agencies.

In a hearing in San Francisco on Tuesday, the advocacy group argued before Judge Vaughn R. Walker that it is unconstitutional to prevent American citizens from suing telecoms, such as AT&T (NYSE: T), that allegedly helped the National Security Agency spy on them.

"It's a complicated issue, so it could take the judge several months to make a decision," EFF spokesperson Rebecca Jeschke told the E-Commerce Times.

The law granting telecoms immunity is known as the "FISA Amendments Act of 2008." The Foreign Intelligence Surveillance Act was first passed in 1978.

Lawsuit Against AT&T

The arguments before Judge Walker Tuesday were just the latest legal maneuver in a lawsuit the EFF launched against AT&T early in 2006. The suit alleges that AT&T violated the law and the privacy of its customers by collaborating with the NSA in a massive, illegal program to wiretap and data-mine Americans' communications.

In May 2006, many cases of a similar nature were filed against a variety of telecommunication companies. The cases were later lumped into a class action lawsuit and transferred to the Northern District of California federal court.

"We've been litigating this for a couple of years now," the EFF's Jeschke said.

Judge Walker's decision on the constitutionality of the law granting immunity to telecoms accused of helping the NSA spy on Americans is critical to the issue central to EFF's lawsuit against AT&T: whether the phone company indeed helped the NSA monitor American citizen's phone calls and Internet communications.

"Today, we're talking about whether we can litigate the issue at all," Jeschke said, "but the crux of the [lawsuit] is whether AT&T [helped the NSA spy on Americans], and what kind of legal remedy there should be for people who were spied on illegally."

Long Road Ahead

The EFF will likely face an uphill battle in its case against AT&T.

"I think it will be difficult for the EFF, because the challenge is over whether Congress overstepped its bounds," said Peter Vogel, a partner and trial lawyer at Gardere Wynn Sewell.

"It's challenging the authority of Congress to establish laws. That's a pretty big constitutional issue, and one that most courts are not anxious to take on," he told the E-Commerce Times.

However, the fact that the case is being litigated in the federal courts in San Francisco may provide an advantage to EFF, said Vogel, who is also an adjunct law professor at Southern Methodist University.

"The judges in the federal courts in San Francisco have a lot of experience dealing with litigation involving technology," he said. "That isn't what always happens in other court venues. Generally, judges don't understand all these issues, and you get responses from the courts that are all over the place."

The Ninth Circuit Court of Appeals -- where the case could end up -- "tends to be activist," Vogel noted, which could work in the EFF's favor.

Critical Rights at Issue

Though it won't be known for months -- or even years, the outcome of the EFF's lawsuit against AT&T could have profound effects on surveillance law and privacy rights in the future, Vogel said.

Yet most Americans aren't aware that their privacy is at stake.

"In the really big picture, we, as citizens, have more exposure than most people understand," Vogel said. "In the wake of [the Sept. 11, 2001, terrorist attacks], the NSA and the CIA were very busy clandestine organizations."

Through the U.S. Patriot Act, both agencies were given broad power to investigate potential threats -- both foreign and domestic -- an in effort to protect the American government and U.S. citizens from other attacks, Vogel said.

"But I don't think Americans know just how broad those powers are," he concluded. "As near as I can tell, AT&T and all the other phone companies did virtually nothing to fight the [U.S. government's] request for private information."