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Federal judge dismisses suits against telecom industry for wiretapping assistance

[JURIST] A federal judge on Wednesday upheld [opinion, PDF] a federal statute that gave immunity to telecom companies from liability associated with assisting the National Security Agency (NSA) [official website] with eavesdropping, dismissing 46 lawsuits [opinion, PDF] against the telecom industry. Additionally, the judge granted an injunction against five states, ordering state officials to cease their investigations into wiretapping activities. The injunctions were originally sought by the government in 2006 under the Supremacy Clause [text] but were denied by the court on the grounds that the states' investigations "did not violate the doctrine of intergovernmental immunity, were not preempted by federal statutes and did not infringe on the government's power over foreign affairs to a constitutionally impermissible degree." Congress then passed the FISA Amendments Act of 2008 (FISAAA) [text, PDF], amending the Foreign Intelligence Surveillance Act of 1978 (FISA) [materials text], which contains provisions prohibiting state investigations into a telecom provider's assistance to government intelligence among other provisions. Additionally, the US Court of Appeals for the Ninth Circuit [official website] remanded a class action suit brought by AT&T customers whose private communications records were handed over to the NSA "in light of the FISA Amendments Act." District judge Vaughn Walker ruled Wednesday that these "two important developments have altered the posture of these cases," holding that the state investigations are now prohibited and, as a result, dismissed the consolidated lawsuits against the telecom companies. Because the grant of immunity contained in the FISAAA only applies to disputes over eavesdropping activities authorized between September 11, 2001 and January 7, 2007, Walker dismissed the suits without prejudice, allowing the petitioners to tailor their complaints to include allegations arising after January, 2007. Addressing federal preemption, the court held that:

The United States invokes the concepts of field and conflict preemption in arguing that Congress intended to “cover the field,” leaving no supplemental role for the states.

The court agrees with the United States: section 803 does not violate the Tenth amendment because it does not “commandeer” state officials; rather, it prohibits them from investigating certain activities initiated by federal agencies that are “element[s] of the intelligence community.” Because intelligence activities in furtherance of national security goals are primarily the province of the federal government, Congressional action preempting state activities in this context is especially uncontroversial from the standpoint of federalism.

The Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) [advocacy websites] plan to appeal [press release] the ruling, saying that it is now up to the appeals court to stand up for the Constitution and reverse the decision.

The FISAAA was signed by former president Bush in 2008. In May, the Department of Justice (DOJ) [official website] reported to Congress [JURIST report] that 2,083 wiretap and search requests for investigating terrorism suspects were granted in 2008 through FISA, a decline from 2,370 in 2007. In January, the Foreign Intelligence Surveillance Court of Review made public [JURIST report] a ruling [opinion, PDF] from August 2008 that upheld the Protect America Act [text], a 2007 amendment to FISA that allows warrantless wiretaps of international phone and e-mail communications. After the amendment, warrants are still required to monitor purely domestic communications.

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