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US appeals court upholds telecom company immunity law

The US Court of Appeals for the Ninth Circuit [official website] on Thursday unanimously ruled [opinion, PDF] that a law granting immunity from civil suits for telecommunications companies that assist government intelligence agencies is constitutional. The Federal Intelligence Surveillance Act of 2008 (FISA) [text] provides in Section 802 that "a civil action may not lie or be maintained . . . against any person for providing assistance to an element of the intelligence community" as long as the Attorney General certifies this fact while it is still in district court. In an appeal of a dismissal under this section challenging the provision as unconstitutional, a three-judge panel of appeals judges affirmed the dismissal, saying the section "does not violate Articles I or II of the Constitution or the Due Process Clause of the Fifth Amendment." The same court also reinstated two other lawsuits [Washington Post report] brought by telecommunications customers seeking redress for alleged violations of privacy by the National Security Agency (NSA) [official website].

The appeal consolidated 33 cases brought since 2006 challenging immunity for the companies as unconstitutional. The US House of Representatives passed amendments to FISA [JURIST report] in 2008 that included a controversial provision granting retroactive immunity to telecommunications companies that participated in the NSA warrantless surveillance program [JURIST news archive]. The original suits were brought in response to reports that the NSA was using data gathered from warrantless searches [JURIST report] by American telecommunications companies to identify people with connections to terrorism. The US Foreign Intelligence Surveillance Court of Review ruled [opinion, PDF] in 2002 that warrantless wiretapping surveillance was constitutional after an order by former US President George W. Bush authorized the NSA to secretly monitor international calls [JURIST report].

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