Continuing its efforts to seek judicial review of AT&T's involvement in the National Security Agency’s warrantless wiretapping of millions of Americans, EFF has filed the final brief in the 9th Circuit Court of Appeals challenging the retroactive immunity provision of the FISA Amendments Act.
The brief explains the chief constitutional problem with the law: Congress improperly gave the Attorney General the ability to selectively repeal laws passed to protect telecommunications customers from surveillance, as well as removing the protection of the Constitution from their communications and communications records. EFF filed the brief in conjunction with the ACLU offices in California and Illinois and it was filed on behalf of the 32 pending lawsuits against various telecommunications companies allegedly involved in the spying. The next step will be for the court to schedule an oral argument, likely sometime in the next year.
While the specific legal arguments in the brief are somewhat technical, the basic observation is not: under our Constitution, it is Congress that must make and repeal the laws, and it cannot outsource that duty to the Attorney General. Yet the immunity law does just that, allowing the Attorney General to selectively repeal the strong privacy protections Congress created for Americans in FISA, the Electronic Communications Privacy Act and the Wiretap Act. The Constitution does not allow Congress to delegate that power, nor does it allow Congress or the Attorney General to deprive plaintiffs of their Fourth Amendment rights.
Congress did a great disservice to the American people in passing the retroactive immunity. The Obama Administration has shamefully defended the law, taking the position that even your most basic Constitutional rights to be free from unreasonable search and seizure of your private telephone calls and Internet communications can be discarded by the Attorney General. EFF will continue its fight to defeat this unconstitutional immunity law and stop the spying.
Here are the key briefs filed the appeal:
Opposing brief from the government
Opposing brief from the telcos