CDT Fellow Says FISA Lawsuit Not Direct Threat to Telcos—Yet
Telcos aren’t directly threatened by a renewed challenge to the government’s warrantless wiretapping law, but companies could well find themselves in the middle of lawsuits yet to come, Center for Democracy and Technology Fellow Joshua Gruenspecht told us. On Monday, a three-judge panel of the 2nd U.S. Court of Appeals in New York reinstated a lawsuit from Amnesty International and other groups challenging the 2008 FISA Amendment Act. The law gave broad authority to the U.S. to intercept international communications to prevent terrorism. It also immunized from damages telcos that cooperated with warrantless wiretaps. The case that was reinstated by Monday’s decision likely won’t see trial, but the appellate judges left open the possibility that other lawsuits could follow it and telcos could find themselves dragged into that future litigation, Gruenspecht said.
Sign up for a free preview to unlock the rest of this article
If your job depends on informed compliance, you need International Trade Today. Delivered every business day and available any time online, only International Trade Today helps you stay current on the increasingly complex international trade regulatory environment.
The appellate judges ruled, for the first time, that the groups ought to have a chance to prove their case in court. The groups argued that they would have suffered damages from the act because, unable to trust that their confidential overseas communications were protected, they would have to pay to travel abroad to set up in-person meetings. “If the plaintiffs can show that it was not unreasonable for them to incur costs out of fear that the government will intercept their communications under the” act, Judge Gerard Lynch wrote for the panel, “then the measures they took to avoid interception can support standing.” The judges didn’t say whether Amnesty’s case was strong, though, and left open the possibility that the government will still prevail on the merits of the case. “If the possibility of interception is remote or fanciful, however,” Lynch wrote, “their present-injury theory fails because the plaintiffs would have no reasonable basis for fearing interception under the [act] and they cannot bootstrap their way into standing by unreasonably incurring costs to avoid a merely speculative or highly unlikely potential harm.”
The government has 45 days to decide its next steps. It can appeal Monday’s decision to the full 2nd Circuit or it can argue the case at lower court, said ACLU lawyer Jameel Jaffer. If the case goes back to the lower court for arguments, telcos likely won’t be deposed because each side in the case moved for summary judgment before the appeal was filed, Jaffer said. “It’s unlikely to go to trial."
Telcos aren’t out of the woods yet, Gruenspecht said. Frontal challenges to the immunity provisions are still being litigated and any suits similar to Amnesty’s challenge may well see communications companies put under oath, he said. “It’s not the same kind of problem for telcos that would be presented by a successful challenge to the immunity provisions,” Gruenspecht said. Facing a deposition in a civil rights action is “certainly undesirable” for phone and Internet companies, “but I don’t know if it’s the same as a direct knock-down of the immunity laws,” he said.
The decision puts the Obama administration in an uncomfortable position, Jaffer said. In 2007, then-candidate Barack Obama promised that he would join a filibuster to stop the act from passing the Senate. The next year, with the Democratic nomination sewed up, Obama helped break a filibuster against the act. If the case goes back to the lower court for arguments, it will be the first time the administration has taken a public position on the law. “It'll be interesting to see how they defend the statute,” Jaffer said. A Justice Department spokesman declined to comment.
Rep. Jerrold Nadler, D-N.Y., is cheered by the decision. “The Court of Appeals has correctly decided that government surveillance is not above the law,” the member of the House Judiciary Committee told us. “Americans who might reasonably believe that they are being subject to illegal surveillance by the government have the right to their day in court. Today’s decision is in the finest tradition of our system of checks and balances, and the rule of law.”