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Ninth Circuit Appeals Panel Upholds Telecommunications Immunity on Warrantless Wiretaps

Posted on January 6, 2012

Please contact Marjorie Spivak at mgspivak@bennetlaw.com for more information.

A three judge panel (Panel) of a federal appellate court has upheld the constitutionality of a 2008 law that gave telecommunications companies retroactive immunity from charges of misconduct, including privacy violations, for cooperating with the Bush administration’s warrantless wiretapping electronic surveillance efforts.[1]  The Panel affirmed a district court’s ruling dismissing various complaints against major telecommunications companies finding that the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008 did not violate the separations-of-powers provisions or Fifth Amendment due-process protections.

Bottom Line:  AT&T, Verizon and Sprint, all defendants in the appeal, are now shielded from allegations of wrongdoing which could have exposed them to billions of dollars of claims and penalties.

The consolidated appeal arises from claims that major telecommunications carriers assisted the government with intelligence gathering following the terrorist attacks on September 11, 2001.  News reports that the National Security Agency (NSA) undertook a warrantless eavesdropping program with alleged cooperation by telecommunications companies spurred dozens of lawsuits by customers against the companies, along with suits against the NSA and other government actors.  Tash Hepting and other residential telephone customers (collectively “Hepting”) challenged the legality of the carriers participation in the surveillance program.  Partially in response to these law suits, Congress passed legislation that provided retroactive immunity to the companies, subject to various conditions, but expressly left intact potential claims against the government.  The sole issue before the Panel is the constitutionality of the FISA Amendments Act of 2008, which allows immunity for the telecommunications companies.

The appeal includes 33 actions against telecommunications companies originally filed in 2006 which challenge the legality of the carriers’ participation in a secret and illegal government program to intercept and analyze vast quantities of Americans’ telephone and Internet communications.  The suits were consolidated in August of 2006 in the Northern District of California.  While the underlying actions were pending in district court, Congress enacted the FISA Amendments Act of 2008 which includes an immunity provision that is triggered if the United States Attorney General certifies to certain conditions.  Specifically, under the law, district courts must dismiss surveillance lawsuits against telecommunications companies and other electronic communications providers if the Attorney General certifies that their cooperation was provided pursuant to statutory authority specified by the legislation.  In addition, if the surveillance occurred between Sept. 11, 2001, and Jan. 17, 2007, the courts were directed to dismiss the lawsuits if the Attorney General certified that the carriers/providers received written assurances that the activities were authorized by the President and determined to be lawful. The Attorney General’s certification would be deemed valid unless the court finds that it is not supported by substantial evidence provided to the court.

The district court considered and dismissed the claim that constitutional defects make the statute unenforceable.  The district court concluded that challenges to the sufficiency of certifications are barred by statute and not sufficiently substantial to persuade the court that the intent of Congress in enacting the statute should be frustrated.  On appeal, Hepting challenges only the facial constitutionality of the statute.  The Panel found that the FISA Amendments Act of 2008 is constitutional and does not violate the separations-of-powers provisions and the Fifth Amendment due process protections.

The plaintiffs, who include the Electronic Frontier Foundation and the ACLU, could appeal the decision to the full Ninth Circuit or directly to the Supreme Court. The Ninth Circuit however is considered the most liberal circuit in the country.  Even if it were to overturn the unanimous decision of the Panel, who are all Democratic appointees, it is unlikely the Supreme Court would find the 2008 law unconstitutional.


[1] In re: National Security Agency Telecommunications Records Litigation, Hepting v. AT&T Corp., No. 09-16676, slip op. (9th Cir. Dec. 19, 2011).