Ninth Circuit Upholds Immunity for Telecoms
By J. Bradford Currier and Marty Stern
A three-judge panel of the U.S. Ninth Circuit Court of Appeals has affirmed the dismissal of thirty-three claims against telecom companies that had assisted government agencies with warrantless eavesdropping in connection with a post-9/11 surveillance program. In a 2008 amendment to the Foreign Intelligence Surveillance Act of 1978 (FISA), which was passed partially in response to pending lawsuits challenging the providers’ assistance to the government in connection with the program, telecom companies were provided qualified retroactive immunity for “providing assistance to an element of the intelligence community,” such as the National Security Agency, to obtain information regarding phone and Internet customer communications. The decision in Hepting v. AT&T Corp. follows years of debate regarding the constitutionality of the surveillance program, as well as multiple legal challenges by privacy advocates such as the ACLU.
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