Watchdog Group Takes On Telecom Immunity Law

A digital-rights advocacy group is challenging a controversial law that granted immunity to telecom providers that participated in the government’s domestic surveillance program.

The Electronic Frontier Foundation (EFF) yesterday filed a brief with a federal court in California seeking to overturn the amendment to the Foreign Intelligence Surveillance Act (FISA), which shields companies such as AT&T from lawsuits for disclosing their customers’ communication records to the government.

Lawyers for the group are claiming that the FISA Amendment Act (FAA), signed into law earlier this year, gives the executive branch more power than the U.S. Constitution provides, running counter to the idea of a separation of powers. Under the law, the U.S. attorney general can intervene to dismiss a lawsuit against a telecom provider by certifying to the court that no law was broken. The EFF contends that job properly belongs with the judiciary.

“Our constitutional argument is that the Congress and the executive have overstepped their bounds,” Kevin Bankston, a senior attorney with the EFF, told

The U.S. District Court in San Francisco is scheduled to hear the challenge on Dec. 2. A spokesman for AT&T declined to comment.

The EFF has been at the forefront of the legal opposition to the warrantless wiretapping program. Along with the American Civil Liberties Union, the group is coordinating litigation in 47 cases involving the government’s surveillance activities.

In the principal case, Hepting vs. AT&T, the EFF is representing AT&T customers seeking an injunction against the surveillance and statutory damages from the telecom giant.

President Bush has defended the program as a necessary weapon in the war on terror, and said that it is subject to periodic review to ensure that it protects Americans’ civil liberties.

Last month, Attorney General Michael Mukasey filed a certification (PDF) with the California court calling on the judge to dismiss all civil cases against the communications providers working in concert with government surveillance agencies.

“While confirming the existence of the [Terrorist Surveillance Program, the administration’s official name for the effort], the government has denied the existence of the alleged dragnet collection on the content of plaintiffs’ communications,” Mukasey wrote.

Bankston sees it differently.

“The administration is attempting to sweep under the rug the massive illegality of the program,” he said. “It does involve a massive content vacuum sucking up millions upon millions of communications from innocent Americans.”

Frustrated with the slow progress of the litigation against the telecoms, the EFF last month filed a lawsuit against the president, vice president, the National Security Agency and other officials and agencies involved with the program.

Bankston said his group will call on the next Congress to repeal the FAA.

The latest movement on the domestic surveillance front follows revelations from two military whistleblowers about excesses in the foreign eavesdropping program.

Adrienne Kinne and David Murfee Faulk, two former military intercept operators, last week told ABC News that they routinely listened to recorded conversations of military personnel, aid workers and other Americans in the Middle East. Kinne and Faulk said that many of the conversations were salacious in nature, involving phone sex or “pillow talk.” The whistleblowers described how they would flag these conversations for their coworkers and joke about their contents.

Sen. Jay Rockefeller, chairman of the Senate Intelligence Committee, said the charges were “extremely disturbing,” and pledged to launch an investigation.

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