Supreme Court Declines to Review Warrantless Wiretapping Suit Against Major Telecommunications Firm

Sunday, October 14, 2012, by Anne Marie Tosco

On Tuesday, October 9, 2012, the Supreme Court declined to review the lower court ruling in Hepting v. AT&T. In doing so, it upheld Congress’s retroactive immunity law as constitutional.  This decision immunized telecommunications firms that performed warrantless wiretapping at the government’s behest from legal consequences.

Hepting v. AT&T was a class-action lawsuit filed by the American Civil Liberties Union (“ACLU”) and the Electronic Frontier Foundation (“EFF”) against AT&T in early 2006. The EFF accused AT&T of assisting the National Security Agency (“NSA”) in illegally wiretapping and data mining Americans’ telephone and Internet communications. In its complaint, the EFF charged AT&T with violations of “[t]he First and Fourth Amendments of the United State Constitution, (acting as agents or instruments of the government) by illegally intercepting, disclosing, and/or divulging . . . communications.” The lawsuit prompted Congress to pass amendments to the Foreign Intelligence Surveillance Act (“FISAAA) in 2008 permitting the Attorney General to dismiss “lawsuits over the telecoms’ participation in the warrantless surveillance program if the government secretly certifies to the court that the surveillance did not occur, was legal, or was authorized by the president.” President George W. Bush signed FISAA into law in 2008.

The EFF appealed the decision to the Ninth Circuit Court of Appeals, arguing that FISAAA is unconstitutional in granting such “broad discretion to block the courts from considering the core constitutional privacy claims of millions of Americans.” The Ninth Circuit did not find in favor of the plaintiffs, and in 2011 held the Constitution did not prohibit Congress from delegating to the Attorney General the power to prevent such lawsuits against telecommunications firms.

The petitioners submitted a writ of certiorari to the Supreme Court of the United States in March of 2012, but it was denied. Thus, the decision of the district court and Ninth Circuit stands, and telecommunications firms such as Verizon and Sprint, as well as AT&T, have retroactive legal immunity for their participation in warrantless wiretapping with the NSA.

The Supreme Court’s refusal to review Hepting may not be the end of the EFF’s warpath against government surveillance. Its case Jewel v. NSA is pending. Jewel was filed in 2008, and, as did Hepting, accuses the NSA and other federal agencies of unconstitutionally surveilling the communications of AT&T customers. Jewel names individuals, such as Preident George W. Bush and Former Vice President Dick Cheney for their alleged involvement in warrantless surveillance. Though the Obama administration moved to dismiss the case on grounds that the government was immune from such as suit as it would be forced to disclose “state secrets,” the Ninth Circuit permitted the case to proceed in district court. The EFF planned to file a motion for summary judgment in Jewel on the same day the Court declined to review Hepting.