Remember when Congress granted retroactive immunity to phone companies that release confidential phone records to the government, rejecting an amendment to the Patriot Act from Senators Chris Dodd, Russ Feingold and Patrick Leahy to strip out said telecom immunity? Remember when then Democratic primary candidate, Senator Barack Obama, “vowed to fight” immunity and then did a 180 and backed it instead? Didn’t think so.
But the ACLU – loyal Verizon customer - sure remembers, and they are making some interesting arguments to get around this law in its case “tak[ing] aim at a program, administered under the anti-terror Patriot Act, to collect the telephone records of all Verizon Communications Inc. (VZ) customers and turn them over to the NSA.” There’s actually quite a back story. Writes the Minneapolis Star Tribune,
Before there was Edward Snowden and the leak of explosive documents showing widespread government surveillance, there was Mark Klein — a telecommunications technician who alleged that AT&T was allowing U.S. spies to siphon vast amounts of customer data without warrants.
Klein's allegations and the news reports about them launched dozens of consumer lawsuits in early 2006 against the government and telecommunications companies. The lawsuits alleged invasion of privacy and targeted the very same provisions of the Foreign Intelligence Surveillance Act that are at the center of the latest public outcry.
That was seven years ago, and the warrantless collection continues, perhaps on an even greater scale, underscoring just how difficult the recently outraged will have in pursuing any new lawsuits, like the one the American Civil Liberties Union filed against the government on Tuesday in New York federal court. …
All the lawsuits prompted by Klein's disclosures were bundled up and shipped to a single San Francisco federal judge to handle. Nearly all the cases were tossed out when Congress in 2008 granted the telecommunications retroactive immunity from legal challenges, a law the U.S. Supreme Court upheld [in a case involving 33 lawsuits]. Congress' action will make it difficult to sue the companies caught up in the latest disclosures.
The only lawsuit left from that bundle is one aimed directly at the government. And that case has been tied up in litigation over the U.S. Justice Department's insistence that airing the case in court would jeopardize national security.
(Interestingly, late last week, “federal prosecutors asked the judge to delay making any decision until it can report back to the court on July 12 what the latest disclosures may mean to the lawsuit.)
As to the ACLU’s new Verizon suit, as I noted earlier, they have some pretty interesting things to say. First of all, it’s personal:
The ACLU's complaint filed today explains that the dragnet surveillance the government is carrying out under Section 215 infringes upon the ACLU's First Amendment rights, including the twin liberties of free expression and free association. The nature of the ACLU's work—in areas like access to reproductive services, racial discrimination, the rights of immigrants, national security, and more—means that many of the people who call the ACLU wish to keep their contact with the organization confidential. Yet if the government is collecting a vast trove of ACLU phone records—and it has reportedly been doing so for as long as seven years—many people may reasonably think twice before communicating with us.…
Second, the Supreme Court didn’t allow THIS:
Last year, in a case on GPS tracking by police, five members of the Supreme Court indicated support for the common-sense notion that government collection of individual bits of seemingly innocuous personal information over a long period of time could amount to such a complete invasion of privacy that it would be unconstitutional. The surveillance program that came to light with the release of the FISC order constitutes precisely that kind of unreasonable incursion into Americans' private lives.
And finally, “The statute requires that records seized under its authority be ‘relevant’ to an authorized foreign-intelligence or terrorism investigation. But while that language imposes a real limitation on when the government can use Section 215, the FISC order covering all VBNS customers demonstrates that this 'relevance' restraint is shockingly inadequate."
Let's wait and see.