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

Ann Brick,
ACLU of Northern California
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June 4, 2009

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.

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