July 23, 2008 | By Hugh D'Andrade

Three Ways to Fight Immunity

It’s been two weeks since the Senate’s cowardly vote to pass the FISA Amendments Act (FAA), caving in to the president’s demands. With this vote, Congress gave the president virtually all of the spying powers he has sought for so long, and delivered the one thing he demanded above all else: Immunity for his telecom buddies for their role in his illegal spying program.

EFF fought long and hard to prevent passage of immunity for the telecoms, and this vote was a serious setback for our case seeking to hold AT&T and the other telecoms accountable. But the fight is far from over. As we suggested in the immediate aftermath of the vote, Congress may have caved, but EFF has not. In the coming months and weeks, we will continue the fight against immunity on multiple fronts.

Here is a brief primer on what we are doing now to fight back against this unconstitutional bill:

1. New litigation against the government.

We are bringing our many years of experience fighting illegal spying to bear on a new case – and this time, rather than holding private actors accountable, we will be taking on the government. For the moment we are keeping the details of this litigation to ourselves. But the goal is the same: to stop the wholesale surveillance of millions of Americans and restore our constitutional protections.

2. Constitutional challenges in Federal court.

By interfering with the ongoing deliberations of the judicial branch of the government, the FAA’s immunity provisions violate the Constitution’s insistence on a separation of powers. As Senator Sheldon Whitehouse of Rhode Island said during the Senate debates on the FAA:

If you wish to see a case of legislative interference with private judgment of the courts, look no further than what we are doing today... Congress stepping in to pick winners and losers in ongoing litigation on constitutional rights not only raises separation of powers concerns but it veers near running afoul of the due process and takings clauses [as well]... If I were a litigant, I would challenge the constitutionality of the immunity provisions of this statute, and I would expect a good chance of winning.

EFF will do just that, asking the Federal courts to find the FAA unconstitutional on this and other grounds.

3. Congressional repeal of immunity provisions.

The FAA passed Congress, but not by a wide margin. Key members of Congress actively opposed sections of the bill, including telecom immunity. Majority Leader Reid, Speaker Pelosi, and Presidential candidate Barack Obama have all voiced strenuous opposition to telecom immunity.

More importantly, the public remains opposed to immunity. As EFF members are well aware, the president faced an uphill battle against a rising tide of public opinion in his quest to secure immunity for lawbreaking telecoms. It took almost two full years, with multiple retrenchments, to pass the bill. And it was only by bucking their constituencies that many members of Congress acted to pass the bill.

In 2009, this opposition will only have grown stronger, setting the stage for a congressional repeal of immunity. EFF will be there, working the halls of Congress and coordinating with the many opponents of telecom immunity to strike this unconstitutional bill from the books as soon as possible.

We may have lost the congressional battle on telecom immunity, and we may lose other battles from time to time in the future. But EFF will not stop until the laws are changed, and the surveillance hubs that are illegally sweeping up the communications of millions of innocent Americans are physically removed from the country’s telecom infrastructure. As more revelations continue to appear in the press (see today’s article in Salon — log-in may be required), it is more clear than ever that we must continue our efforts to restore your rights.

You can help us in this fight. If you haven’t joined yet, now is the time. And stay tuned for more updates in the future. The next phase anti-immunity movement is underway, and we need your help.


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