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Appellate Court Reversal Less About Wiretapping, More About Government Immunity

Appellate Court Reversal Less About Wiretapping, More About Government Immunity

Although an appeals court ruling found the U.S. government immune to prosecution for unlawful surveillance of an Islamic organization, it does not open the door to rampant invasions of citizen privacy. "This case signals the end of the Bush era surveillance operations," said G. Robert Blakey, a professor at the Notre Dame Law School. "It will have no impact on the future because the surveillance today is done under a court order."

By Peter Suciu
08/08/12 12:22 PM PT

The 9th U.S. Circuit Court of Appeals on Tuesday overturned a ruling by a lower court judge who had awarded US$40,800 in damages and $2.5 million in attorney fees to the now-defunct Al-Haramain Islamic Foundation. This is the latest chapter in what has been a five-year challenge to the Bush administration's Terrorist Surveillance Program.

The appeals court ruled that the federal government is in fact immune to such claims.

"There are still warrant and other procedural requirements imposed by FISA (Foreign Intelligence Surveillance Act of 1978), although they have been weakened by the FISA Amendments Act of 2008," said Jon B. Eisenberg of Horvitz & Levy, the attorney for the plaintiffs in appellate case.

"But this 9th Circuit decision means that if the federal government doesn't follow those requirements, the federal government can't be sued for warrantless wiretapping," Eisenberg told TechNewsWorld.

For the Love of Big Brother?

The question is what does this ruling mean? More importantly, has anything really changed?

"Wiretap has only gotten easier for the government in the last few years," said telecommunications expert Ben Levitan. "This is scary -- this is Big Brother stuff."

However, this ruling doesn't entirely open the door for warrantless wiretapping either.

"The 9th Circuit's decision yesterday in Al-Haramain is certainly significant, but we do not believe that this means the government can spy on citizens without accountability," said Alan Butler, appellate advocacy fellow at the Electronic Privacy Information Center.

"The Court's opinion in that case was limited to the issue of whether the government can be liable under a specific FISA provision for the unlawful collection of U.S. communications," added Butler.

"There are still a number of live cases related to the unlawful and unconstitutional collection of U.S. communications," he said, "including Clapper v. Amnesty, which will be heard by the Supreme Court this fall. The 9th Circuit's opinion does not bar claims under the Fourth Amendment, or other statutory claims."

CALEA and FISA

At the heart of this matter are two very different acts. The first is CALEA -- the Communications Assistance for Law Enforcement Act -- which was passed in 1994, during the presidency of Bill Clinton. This act was to enhance the ability of law enforcement and intelligence agencies to conduct electronic surveillance by, in essence, requiring that carriers and manufacturers provide a way for federal agencies to monitor all telephone, broadband Internet and even VoIP traffic in real time.

"Back in 1992, the FBI represented all of government in law enforcement and noted it was losing ability to wiretap because of cellular phones," said Levitan.

"This cuts both ways. People have an expectation of privacy when using their mobile phones, but law enforcement argues that the technology impedes their ability to get a lawful wiretap," he explained.

"I don't see any danger in conducting a wiretap with a warrant," added Levitan.

The other act is the aforementioned Foreign Intelligence Surveillance Act of 1978, which was further amended by the USA PATRIOT Act in 2001. Originally, the point of the Act was to gather physical and electronic surveillance and collection of intelligence information from foreign powers.

The amendment was primarily intended to include terrorism on behalf of groups that are not specifically backed by a foreign government.

"It is true that national security surveillance has been conducted since Roosevelt," said G. Robert Blakey, professor of law at the Notre Dame Law School. "What has changed today is that is that Islamic groups are not really agents of a foreign power."

The other part of the issue in the appeals court ruling is not whether the agents in fact broke the law, but how they acted at the time.

"Whether it was lawful or not isn't the issue here," added Blakey. "What is at issue is that that court ruled that the agents were immune as they acted in good faith. It isn't whether it is right or wrong but whether the agents thought it was right and acted in good faith."

Final Suit?

This particular case could still go to the Supreme Court, but even if it does it won't likely set much in the way of precedence.

"This case signals the end of the Bush era surveillance operations," said Blakey. "It will have no impact on the future because the surveillance today is done under a court order."

However, the reasons for the case going to trial in the first place is also a matter of privacy.

"This case is an example of a series of cases by Islamic groups in an effort to get surveillance off their back," added Blakey. "This case represents that the suits are at an end."

Moreover, the latest ruling suggests this is more of a sovereign immunity case than one of privacy.

"The basic issue here is sovereign immunity, but the doctrine of sovereign immunity is that citizens can't sue the government for acting in official capacity unless the government agrees to be sued," said Michele Martinez Campbell, associate professor of law at the Vermont Law School. "The idea there is that if people could just sue the government, the courts would be clogged with lawsuits and the government wouldn't be able to function."


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