As Expected, Judge Dismisses Warrantless Wiretapping Lawsuits Against Telcos

from the it's-the-law... dept

Thu, Jun 4th 2009 4:30pm — Mike Masnick

This isn't a huge surprise, but a judge has tossed out the ACLU and the EFF's various lawsuits against telcos for enabling warrantless wiretapping for the government. The reason it isn't a huge surprise is that the gov't last year, in a well publicized move, granted the telcos immunity from prosecution, and the judge basically pointed that out in dismissing the case. Instead, the judge said that if these groups have a complaint, it's with the gov't for granting immunity (not to worry, there are lawsuits against the gov't as well). Not surprisingly, the EFF and ACLU are appealing. Still, it does seem like these lawsuits are a longshot, even if it's disappointing. It seems ridiculous that the gov't can grant widespread immunity to a company for potentially breaking the law -- but, again, it seems that's an issue to take up with the government -- and once that's solved, go back and deal with the companies specifically. The judge's job is to interpret the law, and in this case, the law says that the telcos are immune. Now, if you believe (as I do) that such a law is ridiculous and should be seen as unconstitutional, than the issue is to take it up with the government. So, the judge's ruling makes sense, even if it's disappointing to see telcos potentially get off the hook for violating customer privacy rights.

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Filed Under: telco immunity, telcos, warrantless wiretapping
Companies: aclu, at&t, eff, verizon

26 Comments

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Matt Tate (profile), 4 Jun 2009 @ 4:35pm

How Does the Law Become Unconstitutional?
I'm no constitutional lawyer, but couldn't the law be declared unconstitutional by appealing the case all the way to the Supreme Court? Mind you, I have no idea other than a civics class I took in 6th grade, so correct me if I'm wrong.
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Anonymous Coward, 4 Jun 2009 @ 5:09pm

"judge said that if these groups have a complaint, it's with the gov't for granting immunity"

Key words here. The judge pretty told them to stop wasting time. Appealing it would probably be just more wasting time. They already have a case working somewhere else that has at least a 1% chance of floating.
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ChurchHatesTucker (profile), 4 Jun 2009 @ 5:12pm

Pardon me
Isn't a law like this effectively a pardon? Can Congress do that?
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Christopher Smith, 4 Jun 2009 @ 5:25pm

Re: How Does the Law Become Unconstitutional?
Actually, the court in question could have, and in my non-lawyerly opinion should have, thrown the law out. The judge noted how broad and unprecedented this law is (the retroactivity, specifically), and it seems that there would have been legitimate arguments for ruling it unconstitutional. The plaintiffs should be taking the issue up with *both* the government and the telcos--and part of what they're taking up with the government is that they can take it up with the telcos.
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Anonymous Coward, 4 Jun 2009 @ 5:32pm

Re:
"judge said that if these groups have a complaint, it's with the gov't for granting immunity"

Except, when Congress granted immunity, polling from the time suggests that the People were unhappy with immunity.

Additionally, ChurchHatesTucker mentioned that effectively it was a pardon, which it seems to be.

There's so much wrong with this, and why we went to war. Plus as we learn about how idiotic the people at the CIA even pursue the timeless art of bookkeeping (Can't even keep records of meetings) just really makes me question a whole lot of liberties that we gave up over the last 8 years.

Hell, Cheney even said last week that there was no connection to Iraq and 9-11. Makes you wonder if that pipeline got built!
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Paul Brinker (profile), 4 Jun 2009 @ 5:33pm

I would have said the same thing, There needs to be a question on weather the goverment can retroactivly declare something illegial legal.

Now the best argument for this would be that eather something the telco's did was explisit in the constitution thus congress would have to pass an amendment for the retroactive immunity.

My best guess would be that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" counts for phone call wire taps too.
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Mark Bender, 4 Jun 2009 @ 5:36pm

Right Balance
I have taken a look into this topic as well and I don't agree with your conclusion. The telcos are storing the voice stream on a hard drive. Then if your phone number is involved with a security threat, the gov't goes to the court and gets approval to access stored data streams.

In my view this is a good balance between privacy and security. You still have all the same constituion proctections you always had. If the ACLU is allowed to prosecute and turn this into a big deal then you will have no cooperation in the future at all. This is not a good long turn solution.
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Anonymous Coward, 4 Jun 2009 @ 5:45pm

Re: Right Balance
The telcos are storing the voice stream on a hard drive. Then if your phone number is involved with a security threat, the gov't goes to the court and gets approval to access stored data streams.

Not really. There is no warrant required. It's really a grand fishing expedition.

Think Blogolovitch or Spitzer, If someone doesn't like ya, they just wait for you to slip up, make an inebriated phone call, reduce public opinion via the news so your forced to resign or be booted out on the basis of public opinion and *not* the rule of law.

Ends justify the means in their mind.
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Freedom, 4 Jun 2009 @ 6:13pm

Just a reminder...
Just a friendly reminder that both Bush and Obama supported and signed into law teleco's immunity. So much for change!

Basically, the government strong armed the telecos into playing ball after 911 and now the government is trying to ensure that the telecos are protected and probably trying to ensure that the telecos don't do the natural thing and start pointing the blame back at the government along with details of their far-reaching abuse including monitoring all traffic thru their "hubs".

Classic case of CYA.

Only good point is that at least Qwest stood up to this nonsense. The rest fell to the massive pressure exerted on them and tossed our rights and freedoms under the bus.

Maybe I'm just getting old and cranky (take that back, yeah, I'm getting old and cranky), but I'm so tired of being told this is for our safety or for the children - BS. It is a huge power grab that results in us living in an 1984 type society.

This lawsuit should go to the supreme court and hopefully declared unconstitutional - the telecos should be made to pay and the government officials exposed and prosecuted for breaking the law.

Freedom
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bob, 4 Jun 2009 @ 7:50pm

Kill the 10th, Then the 2nd and the rest will Follow.
Like more than 2/3's of the laws on the books today. This law is not in line with what it says the Federal Government can do under the constitution.
Of course over the years lawyers and judges have "whored" the meaning of the constitution.
Most of it goes back to a farmer wanting to grow wheat for personal use. A ruling that killed the true meaning of the 10th amendment.
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Kaleo, 4 Jun 2009 @ 7:54pm

Ahem
For real political change, reelect no one.
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Dan, 4 Jun 2009 @ 8:07pm

The most effective response is a massive boycott of the telco's involved. A commitment from Senators and Representatives would be nice but most are gutless whores that voted for this in the first place, heaven forbid they reconsider a bad decision.
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PrometheeFeu (profile), 4 Jun 2009 @ 8:16pm

You know, I think this actually makes sense... If the government comes to you, tells you you have to do something of questionable legality and passes a law that makes you immune from prosecution for it, you really are making a gamble either way... Maybe that law will be declared unconstitutional and you will be protected if you refuse to go along, but maybe it won't. I think fundamentally, you have a right to trust what the government says and not get in trouble for it. (Up to a point) After that the government should be held accountable for lying and breaking the law, but it seems like a poor policy to setup this catch-22 thing where if you do what the government says, you get sued, but if you don't, they can keep beating on you.
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Anonymous Coward, 4 Jun 2009 @ 8:22pm

Re:
Key words here. The judge pretty told them to stop wasting time.

That's not the away it works if there's a question of constitutionality involved. For example, if some corrupt political party were to manage to take control of the gov't and pass a law authorizing the telcos to own slaves, then there would be a legitimate basis for the slaves to to file a lawsuit against the telcos claiming that slavery is illegal despite any law passed by congress. It would be absurd for some judge to then dismiss their lawsuit against the telcos and tell them to take it up with the gov't instead if they don't like it.

Now in this case, the gov't has passed a law that has blessed the telcos violating people's rights against warrantless searches. People have sued and the judge has dismissed their suit and told them to take it up with the gov't instead if they don't like it. See the problem?

One purpose of the constitution is to protect the people from having their rights taken away from them by the gov't in the first place. But this judge has basically said that he is going to follow the law even if it is unconstitutional and toss those protections aside. That is absurd and I am amazed that anyone would agree with this judge.
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Anonymous Coward, 4 Jun 2009 @ 8:37pm

Re: Pardon me
I think the word you're looking for is "amnesty".

I never thought of it that way, but one could call an amnesty a form of an Ex post facto law.
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Scott, 4 Jun 2009 @ 8:48pm

We the People...
We are the f'n government. Perhaps WE should do something about it?
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Anonymous Coward, 4 Jun 2009 @ 10:11pm

seems ex post facto in a way...
I think the president could pardon if they were convicted, but I don't think pre-emptive pardons are sound doctrine...

Likewise, the judge throwing out the phone companies seems weird unless he has a rider that it should be re-filed if the pre-emptive excuses are overturned...

Of course our USA legal system makes 0 sense anymore...
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Anonymous Coward, 4 Jun 2009 @ 10:45pm

Re: Re: Pardon me
"I never thought of it that way, but one could call an amnesty a form of an Ex post facto law."

So what if it is? It's not unconstitutional until the judge says so and this one just refused to do so.
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Anonymous Coward, 4 Jun 2009 @ 10:49pm

Re: Right Balance
Then if your phone number is involved with a security threat, the gov't goes to the court and gets approval to access stored data streams.

Heh, almost anyone can be made into "a security threat".
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Nathan, 4 Jun 2009 @ 10:53pm

Re: How Does the Law Become Unconstitutional?
Wouldn't retroactive immunity be an ex post facto law?
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Nathan, 4 Jun 2009 @ 10:56pm

Re:
Exactly. In order to be pardoned one has to either be convicted or plead guilty.
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Christopher Smith, 5 Jun 2009 @ 1:31am

Re: Re:
Not necessarily. A pardon can also be given before someone is tried, as in the case of Richard Nixon.
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Another Anon Coward, 5 Jun 2009 @ 4:36am

Re: Re:
For example, if some corrupt political party were to manage to take control of the gov't and pass a law authorizing the telcos to own slaves

If I understand it correctly, your analogy is on the right track, but instead of the corrupt politico *authorizing* a telco to own slaves, the corrupt politico was *ordering* the telco to own slaves.

Correct me if I have it wrong, but in the case at hand, the telcos placed the taps because the govt. ordered them to do so -- not that the govt said "Hey telco, it's ok for you to tap someone if you feel like it, but you don't have to if you don't really want to..."

I'm not sure the telco's had full freedom of choice in the matter. If they declined, the govt. would bring whatever pressure to bear to make them comply (regulatory, FCC licensing, whatever). I'm not saying it excuses the behavior, but it looks to me like the telco's felt damned if they did and damned if they didn't and took the "free-pass" the govt. offered.
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Anonymous Coward, 5 Jun 2009 @ 6:24am

Re: Re: Re:
Correct me if I have it wrong, but in the case at hand, the telcos placed the taps because the govt. ordered them to do so...

OK, you're wrong. Certain gov't agents requested that the telcos conspire with them to violate the law and they happily went along with it. Or some of them did. Some refused.

I'm not sure the telco's had full freedom of choice in the matter.

Sure they did, and some of them chose to violate the law while others chose not to.
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Tgeigs (profile), 5 Jun 2009 @ 8:23am

Re: We the People...
"We are the f'n government. Perhaps WE should do something about it?"

Mmm, no, sorry, we're not the government anymore. Corporations are, end of story. Fascism, here we come!
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rudya, 12 Jun 2009 @ 4:19pm

suggestion for better article
This article would have been much better if it included the telecom companies that are part of the suit.

This type of information is routinely left out now that the media is almost completely corporate owned.
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