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Sunday, October 21, 2007

Immunity push for telecom firms might not kill wiretap suits

Immunity push for telecom firms might not kill wiretap suits

The Bush administration's proposal to protect telecommunications companies from lawsuits for aiding the government's electronic surveillance program won't necessarily scuttle cases pending in San Francisco against the companies, a lawyer for AT&T customers said Friday.

A bill to extend the clandestine surveillance program for six years, and provide retroactive immunity to companies that shared telephone and e-mail messages and records with the government, cleared the Senate Intelligence Committee on Thursday with bipartisan support.

Legislation backed by House Democratic leaders would not shield the companies from suits, and Sen. Chris Dodd, D-Conn., who opposes immunity, has promised to put a hold on the Senate bill when it reaches the floor. But even if the measure becomes law, current suits against telecommunications firms won't be dropped without a fight, said attorney Lee Tien of the Electronic Frontier Foundation.

For one thing, he said, plaintiffs' lawyers would argue that retroactive immunity in this case violates the constitutional separation of powers.

"When you've got pending lawsuits and suddenly pull the rug out from under them ... that's a major attack on the role of the judiciary," Tien said. Although federal courts have upheld some laws that were drafted to dismiss pending suits, he said, they haven't usually involved important personal rights or "the government concealing its misconduct."

In addition, he said, Congress has no power to grant immunity for constitutional violations. The lawsuits include claims that the companies colluded with the government to flout customers' constitutional rights by conducting searches of their electronic communications and records without search warrants.

The constitutional claims, if proved, would not entitle the customers to damages, only to court orders declaring the practices illegal and ordering them halted. By contrast, allegations in the suits that the companies violated federal statutes, which protect customer privacy, carry potentially huge damage awards for violations but can be nullified by an immunity law.

The AT&T suit, filed in San Francisco in February 2006, was the first of more than 40 surveillance-related suits across the nation against telecommunications companies. They followed President Bush's acknowledgment in December 2005 that the government had been monitoring calls between Americans and suspected foreign terrorists since late 2001 without court approval.

Media reports have also alleged that major telecommunications companies gave the government wholesale access to phone and e-mail traffic and records, allegations the companies have refused to discuss. Evidence in the AT&T case includes a declaration from a former company engineer that equipment in a company office in San Francisco allowed e-mails to be copied and rerouted to the government.

A judicial panel transferred all the suits to San Francisco, where a federal judge in July 2006 rejected arguments by the Bush administration and AT&T that the suit must be dismissed because it would reveal state secrets if allowed to proceed. Appeals by the government and the company were argued in August before the Ninth U.S. Circuit Court of Appeals in San Francisco.

Congress passed a law in late August authorizing the surveillance program through next February and protecting the companies from suits for future cooperation in the program. Bush has said he will veto any new law that does not contain retroactive immunity for the companies' past actions, arguing that the firms should not be punished for patriotic efforts to combat terrorism.

Even under previous laws, telecommunications companies have been protected from liability if they had written authorization from the Justice Department to turn over private customer information. But AT&T and the government have resisted production of any such documents in the current case, arguing that the existence or nonexistence of authorization is itself a state secret.

Under the proposed legislation, the company would be immune if the Justice Department, in a closed-door court proceeding, declared either that the company had not participated in a surveillance program, or that any participation was part of a presidentially authorized intelligence activity designed to prevent a terrorist attack. Plaintiffs' lawyers would not have access to the declaration and would not be allowed to contest it.

Tien, of the Electronic Frontier Foundation, called the immunity provision a "blank check" and added, "It's not good for privacy, and it's not good for democratic government."

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