The 9th Circuit Affirms Immunity for Telecoms is Constitutional

Photo by Bill Bradford

Overview

The U.S. Court of Appeals for the Ninth Circuit has affirmed the lower court holding that The Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008 is constitutional (see In re National Security Agency Telecommunications Records Litigation v. AT&T Corp., 9th Cir., 09-16676, 12/29/11). The appeal addressed the 33 consolidated lawsuits filed against AT&T, Sprint Nextel, Verizon Communications Inc. and BellSouth Corp. on behalf their customers.

The facts of the case centered around the National Security Agency (NSA) "Terrorist Surveillance Program" which allegedly carried out warrantless wiretaps with the assistance of telecommunications companies. Telecommunications company liability was at issue until the FISA was amended granting these companies immunity. This appeal, heard by a three judge panel, raised due process rights and violations of the separation of powers issues but the act was found to be constitutional on its face. One of the plaintiff's lawyers, Kurt Opsahl, Senior Staff Attorney of the Electronic Frontier Foundation, was discouraged by the result stating "It is disappointing that today’s decision endorsed the rights of telecommunications companies over those over their customers.”

Hepting v. At & T Corp. Caselaw History (one of many consolidated cases)

• Hepting v. At & T Corp., 439 F. Supp. 2d 974 - Dist. Court, ND California 2006 ()
• Hepting v. AT & T CORP., 539 F. 3d 1157 - Court of Appeals, 9th Circuit 2008
• In re National Security Agency Telecommunications Records Litigation v. AT&T Corp., 9th Cir., 09-16676, 12/29/11) [which incorporates Hepting v. AT & T] 

For More Information See

• Ninth Circuit: Immunity Law for Telecoms That Aided NSA Surveillance Is Constitutional 
• Appeals court OKs law giving telecom companies immunity for government’s surveillance program 
• Ninth Circuit Upholds Immunity for Telecommunications Companies that Assisted in Warrantless Wiretapping