Jun 4th, 2009
Posted by Ann Brick, ACLU of Northern California at 9:33pm	Surveillance & Privacy, Technology and Liberty

Spying On Americans: The Constitution, The Telcos And Truth-Telling

Back in late 2005 and early 2006, when the New York Times and USA Today revealed that the phone companies had been providing the National Security Agency (NSA) access to their customers' calling records and to the content of their electronic communications, the three California affiliates of the ACLU and the ACLU of Illinois sued the phone companies for violating the privacy of millions of their customers. In addition, at the urging of local ACLU offices, a number of state Public Service Commissions began inquiring into the companies' actions.

These lawsuits were part of a larger group of lawsuits filed across the country, seeking to hold the phone companies accountable for their role in this massive invasion of their customers' privacy. Eventually, all of those lawsuits were consolidated in federal district court in San Francisco before Chief Judge Vaughn R. Walker. Yesterday, Judge Walker ruled that an immunity provision enacted by Congress last summer requires dismissal of all of the suits against the phone companies. And although we plan to appeal that decision, the ruling – if upheld by the Ninth Circuit Court of Appeals – would give the phone companies a free pass for flouting both the law and the privacy rights of their customers.

The Bush administration's illegal program of spying on the communications of millions of Americans would never have been possible without the active participation of telephone companies like AT&T and Verizon Communications, Inc. Two sets of federal statutes, the Foreign Intelligence Surveillance Act (FISA) and the Electronic Communications Privacy Act (ECPA), as well as a number of state laws, explicitly prohibited the phone companies from giving the NSA access to the contents of customers' communications and to their calling records without court orders. So when the NSA asked for that access without a court order, it wasn't just the privacy rights of their customers, but the law itself, that required the phone companies to say: "No." Indeed, that is just what Qwest Communications did when the NSA made its improper demands.

But other phone companies – taking their cue from the Bush Administration – decided they were above the law. And when their outraged customers tried to hold them accountable for their actions, the phone companies and the Bush Administration turned to Congress for help. Last July, Congress caved, and as part of a set of amendments to the Foreign Intelligence Surveillance Act, attempted to give the telecommunication companies amnesty for having broken the law. (You may recall that the ACLU is also challenging the constitutionality of other amendments included in the package, which vastly expand the power of the NSA to spy on our communications).

Not only did the immunity legislation set a dangerous precedent; it is also unconstitutional. When the government asked Judge Walker to dismiss the cases, relying on the new immunity provision, we argued that Congress lacks the power to take away rights granted under the Fourth and First Amendment. It is unconstitutional for a number of other reasons, as well. We will now make that argument before the court of appeals and ask them to overturn the ruling dismissing these suits.

Civil liberties have become a central focus of the national conversation about the kind of country we want to be. Millions of Americans are looking for signals that restoring the Constitution is a priority among all branches of our government. We must be allowed to get at the truth about illegal eavesdropping. Letting the telephone companies off the hook contradicts a core premise of our democracy: no one is above the law. We can't the turn the page on one of the darkest, starkest violations of freedom under the Bush Administration unless we are allowed to shine light on the facts.

Permalink |	Surveillance & Privacy, Technology and Liberty

Tags: national security project

1. Hawaiian style Says:
   Jun 6th, 2009 at 1:07pm

   Kudos and appreciation to the ACLU.

   At minimum we should petition the court to prove that the need to spy argument is valid. We have been spied on now for enough years that we should be able to make an argument to the court that basically says, "Order the government and the telcoms to present evidence of the intelligence that you gained using these procedures that show:

   1. The value of the intel.
   2. The fact that it could not have been obtained any other way.
   3. How it was used
   4. How it resulted in benefit to the American People.

   Certainly if we are going to lose our rights we should require compelling evidence that the cost was worth it.

   Additionally, how did we arrive at the place where Congress thinks that it can take away a Constitutionally granted right by passing an bill into "law"?

   There is a procedure to amend the Constitution and that is not it.

2. Paen Says:
   Jun 7th, 2009 at 1:00pm

   Stalin would have loved such means of spying on people.

3. Atheisto Says:
   Jun 8th, 2009 at 9:48pm

   Fight on, ACLU!

4. Vic Livingston Says:
   Jun 9th, 2009 at 3:18pm

   DEMOCRACY IS BEING STOLEN AT THE GRASSROOTS...

   BY A FEDERALLY-ENABLED AMERICAN GESTAPO VIGILANTE ARMY THAT MAKES A MOCKERY OF THE JUDICIAL SYSTEM IN EVERY COMMUNITY IN THE U.S.

   A secretive security/military/intel "program" fronted by federally-funded community policing and volunteer agencies implants covert GPS tracking devices and has deployed microwave radiation "directed energy weapons" to stalk, harass -- and yes, torture -- unjustly "targeted U.S. citizens and their families.

   This "program" also targets the livelihoods and finances of its victims -- surely a contributor to the mortgage meltdown that triggered a global economic crisis.

   Why hasn't the Civil Rights Division of the Justice Department launched an investigation? Is it because powerful U.S. agencies and commands spawned this "extrajudicial targeting and punishment network" and have covered up domestic, government-enabled atrocities?

   Wake up, Team Obama. This "program" is violating civil and human rights -- and endangers the Obama presidency.

   Now read this:

   http://nowpublic.com/world/gestapo-usa-govt-funded-vigila nte-network-terrorizes-america

   OR (if link is corrupted / disabled):

   http://NowPublic.com/scrivener

5. JESSE-T Says:
   Jun 16th, 2009 at 3:11pm

   SIRS:
   The very recent decision by the NAO to deny to U.S. scientists, data from Mil. satellites concerning space flotsam, jetsam, and assorted rocks falling through our atmosphere seems like such a distant item, and may truly be a non-issue.

   But it appears to me to be part and parcel of a more widespread attitude of bureaucrats that Big Bro can, and will trample Civil Liberties any time it suits The Suits! Particularly when coupled the very disturbing stand the courts have taken regarding the NAO use of publicly-traded companies to gather intelligence data on American citizens!

   Information is power! The withholding of information just to maintain that power is almost always the first hobnail boot planted on the neck of Civil Liberty!

   The court of appeals decision by Walker, as you've stated, so blatantly stands opposed to the spirit AND the letter of our Constitution!

   AND ..... It does not appear that HR-2073 and HR-2074 is of much interest to the Democratic Party! All of this so soon after this landmark 'feelgood' election, and I find the goose bumps on the back of my neck really disturbing!

   Surely, the two aren't necessarily linked, but yeah-buddy........ Stalin would be proud!

   Thank you.

   JT

6. attb Says:
   Jun 26th, 2009 at 4:25pm

   OMG this is so important. Thank you to the ACLU! I have to renew my membership.
   I can't believe 1984 seems more possible every year.