EFF, Bush administration in court over FISA

The EFF and the Bush administration met in a San Francisco court on Tuesday to discuss the legality of the FISA Amendments Act (FAA). The EFF argues that the FAA’s grant of immunity to lawsuits for any telecom that aided the government in federal warrantless domestic wiretapping fundamentally undermines the US constitution.

Since signed into law, there has been significant controversy over the constitutionality of the act which is said to deprive citizens of the due process granted to them by law. Prior to the warrantless wiretapping program, it was required that a court approve a wiretap from any law-executing agency. This paper trail allowed citizens to protect their rights in the event that the tap was conducted unjustly.

Under the new system, the EFF alleges that the FAA is illegal because it permits the executive branch to reject lawsuits filed against telecoms for participating in the wiretapping program. It contends that this is a responsibility that should fall on the judicial branch, thereby respecting the constitutional notion of checks and balances.

During the proceedings, EFF attorney Cindy Cohn outlined the three pillars on which their argument lies:

• Assuring that the right of any citizens to review legal endeavors both for and against their name is a cornerstone of American justice. In the case of wiretapping, this right is not respected.

• Giving the US Attorney General the right to reject lawsuits filed against companies collaborating in warrantless wiretapping circumvents the judicial system. Following the hearing, Cohn said that “Congress is supposed to make laws, not write laws that hand lawmaking powers to the president.”

• There is too much secrecy involved in the system. Judges like the one presiding over the case in San Francisco can only review data as supplied by the Attorney General, a party implicit to what the EFF cites as a problem.

This case, Hepting vs. AT&T, is one of many the ACLU and EFF are now overseeing as coordinating stewards of the 47 outstanding wiretapping-related cases. If they should successfully prove their case, this will be a tremendous victory for both the rights and privacy of American people.