TMT Law Watch

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.

Writing for a unanimous court, Circuit Judge Margaret McKeown noted that federal agencies regularly rely upon private companies to assist with intelligence gathering and that lawsuits against such companies may make the companies unwilling to cooperate with the government in future operations. The Ninth Circuit panel found that the qualified immunity provided to telecom companies in the 2008 FISA Amendment did not violate separation of powers principles nor the Fifth Amendment’s due process clause and upheld a federal district court’s 2009 decision dismissing the lawsuits.  In a separate decision issued concurrently with Hepting, the Ninth Circuit panel also affirmed the dismissal, on jurisdictional grounds, of a class action lawsuit that claimed that the warrantless surveillance program violated the takings clause of the Fifth Amendment.

While the panel’s decisions represent a major win for telecom companies, the overall legality of the warrantless wiretapping program remains subject to challenge. In Jewell v. NSA, the Ninth Circuit panel allowed a lawsuit to proceed against the National Security Agency and Department of Justice, noting that the plaintiff had alleged “concrete and particularized” evidence of unlawful surveillance. It is unclear at this time whether Supreme Court review of any of the panel’s recent decisions will be sought.