Appellate Court Reversal Less About Wiretapping, More About Government Immunity

The 9th U.S. Circuit Court of Appeals on Tuesday overturned a rulingby a lower court judge who had awarded US$40,800 in damages and $2.5million in attorney fees to the now-defunct Al-Haramain IslamicFoundation. This is the latest chapter in what has been a five-yearchallenge to the Bush administration’s Terrorist Surveillance Program.

The appeals court ruled that the federal government is in fact immuneto such claims.

“There are still warrant and other procedural requirements imposed byFISA (Foreign Intelligence Surveillance Act of 1978), although theyhave been weakened by the FISA Amendments Act of 2008,” said Jon B.Eisenberg of Horvitz & Levy, the attorney for the plaintiffs inappellate case.

“But this 9th Circuit decision means that if the federal governmentdoesn’t follow those requirements, the federal government can’t besued for warrantless wiretapping,” Eisenberg told TechNewsWorld.

For the Love of Big Brother?

The question is what does this ruling mean? Moreimportantly, has anything really changed?

“Wiretap has only gotten easier for the government in the last fewyears,” said telecommunications expert Ben Levitan. “This is scary –this is Big Brother stuff.”

However, this ruling doesn’t entirely open the door for warrantlesswiretapping either.

“The 9th Circuit’s decision yesterday in Al-Haramain is certainlysignificant, but we do not believe that this means the government canspy on citizens without accountability,” said Alan Butler, appellateadvocacy fellow at the Electronic Privacy Information Center.

“The Court’s opinion in that case was limited to the issue of whetherthe government can be liable under a specific FISA provision for theunlawful collection of U.S. communications,” added Butler.

“There arestill a number of live cases related to the unlawful andunconstitutional collection of U.S. communications,” he said, “including Clapper v.Amnesty, which will be heard by the Supreme Court this fall. The 9thCircuit’s opinion does not bar claims under the Fourth Amendment, orother statutory claims.”

CALEA and FISA

At the heart of this matter are two very different acts. The first isCALEA — the Communications Assistance for Law Enforcement Act — whichwas passed in 1994, during the presidency of Bill Clinton. This actwas to enhance the ability of law enforcement and intelligenceagencies to conduct electronic surveillance by, in essence, requiringthat carriers and manufacturers provide a way for federal agencies tomonitor all telephone, broadband Internet and even VoIP traffic inreal time.

“Back in 1992, the FBI represented all of government in law enforcementand noted it was losing ability to wiretap because of cellularphones,” said Levitan.

“This cuts both ways. People have anexpectation of privacy when using their mobile phones, but lawenforcement argues that the technology impedes their ability to get alawful wiretap,” he explained.

“I don’t see any danger in conducting a wiretap with a warrant,” added Levitan.

The other act is the aforementioned Foreign Intelligence SurveillanceAct of 1978, which was further amended by the USA PATRIOT Act in 2001.Originally, the point of the Act was to gather physical and electronicsurveillance and collection of intelligence information from foreignpowers.

The amendment was primarily intended to include terrorism on behalf ofgroups that are not specifically backed by a foreign government.

“It is true that national security surveillance has been conductedsince Roosevelt,” said G. Robert Blakey, professor of law at the Notre Dame Law School. “What has changed today is that is that Islamicgroups are not really agents of a foreign power.”

The other part of the issue in the appeals court ruling is not whetherthe agents in fact broke the law, but how they acted at the time.

“Whether it was lawful or not isn’t the issue here,” added Blakey.”What is at issue is that that court ruled that the agents were immuneas they acted in good faith. It isn’t whether it is right or wrong butwhether the agents thought it was right and acted in good faith.”

Final Suit?

This particular case could still go to the Supreme Court, but even ifit does it won’t likely set much in the way of precedence.

“This case signals the end of the Bush era surveillance operations,”said Blakey. “It will have no impact on the future because thesurveillance today is done under a court order.”

However, the reasons for the case going to trial in the first place isalso a matter of privacy.

“This case is an example of a series of cases by Islamic groups in aneffort to get surveillance off their back,” added Blakey. “This caserepresents that the suits are at an end.”

Moreover, the latest ruling suggests this is more of a sovereignimmunity case than one of privacy.

“The basic issue here is sovereign immunity, but the doctrine ofsovereign immunity is that citizens can’t sue the government foracting in official capacity unless the government agrees to be sued,”said Michele Martinez Campbell, associate professor of law at theVermont Law School. “The idea there is that if people could just sue the government, the courts would be clogged with lawsuits and thegovernment wouldn’t be able to function.”

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