U.S. District Judge Vaughn Walker on Wednesday ruled that, thanks to a 2008 federal law retroactively immunizing those companies, approximately 46 lawsuits brought by civil liberties groups and class action lawyers will be dismissed. (See our related story.)
Congress has created a "'focused immunity' for private entities who assisted the government with activities that allegedly violated plaintiffs' constitutional rights," Walker wrote in a 46-page opinion. That has not, he said, "affected plaintiffs' underlying constitutional rights."
Wednesday's ruling is a bitter defeat to groups including the Electronic Frontier Foundation and the American Civil Liberties Union, which are coordinating the lawsuits over warrantless wiretapping. They had hoped to convince the judge that the law improperly infringed upon the separation of powers described in the U.S. Constitution and handed too much power to the executive branch.
The 2008 law, called the Foreign Intelligence Surveillance Amendments Act, was approved by a Democratic-controlled Congress last summer. As a senator, President Obama voted for the measure even though he had previously pledged to oppose it.
It says that no "civil action" may take place in state or federal court "against any person for providing assistance to an element of the intelligence community" -- and will be automatically dismissed as long as the attorney general claims the surveillance was authorized.
Former Attorney General Michael Mukasey sent the court a letter saying the surveillance was authorized, but without offering any further information. The Justice Department under President Obama has not changed its position.
EFF said it would appeal to the 9th Circuit Court of Appeals. "We're deeply disappointed in Judge Walker's ruling today," EFF Legal Director Cindy Cohn said in a statement. "The retroactive immunity law unconstitutionally takes away Americans' claims arising out of the First and Fourth Amendments, violates the federal government's separation of powers as established in the Constitution, and robs innocent telecom customers of their rights without due process of law."
The ruling does not affect lawsuits that have been filed directly against the NSA or other government agencies, including the EFF's Jewel v. NSA case. (A congressional report accompanying the 2008 law explicitly says: "Nothing in this bill is intended to affect these suits against the government or individual government officials.")
Walker left one possible opening for EFF, ACLU, and their allies. Because the 2008 law exempts surveillance "authorized by the president" during the time from September 11, 2001 and January 17, 2007, telecom firms could be held liable if they surreptitiously cooperated with NSA or other agencies more recently.
He gave the 30 days to amend their complaint to focus on surveillance that took place after January 17, 2007, the date that President Bush decided to amend the program to include supervision by courts.