In beginning their new October term, the Supreme Court has rejected a request to review a lower court ruling concerning the constitutionality of warrantless governmental eavesdropping. A longstanding and highly-contentious case, Hepting v. AT&T concerns the National Security Agency’s (NSA) use of wiretaps without court authorization during the previous Bush administration, and subsequent allegations that AT&T was unlawfully complicit in this possible intrusion of fourth amendment rights. Accordingly, communications giant AT&T has faced a class-action lawsuit from the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF), which hopes to remedy this consistent lack of accountability and transparency in regards to the government’s use of warrantless wiretapping.
In 2008, President Bush signed an amendment to the Foreign Intelligence Surveillance Act (FISA), which provided retroactive immunity for telecommunication companies that cooperated with the government in its efforts to advance national security interests. This act essentially absolved telecom corporations of any civil liability that resulted from their assistance to governmental surveillance, and Hepting was initially dismissed by the California district court in 2009 due to appeals to this new legislation. In his opinion justifying his decision, Judge Walker indicated that:
The new law included an immunity provision for the benefit of telecommunications companies that would be triggered if and when the Attorney General of the United States certified certain facts to the relevant United States district court. The court has examined the Attorney General’s submissions and has determined that he has met his burden under section 802(a).
This September, Congress again renewed these controversial amendments to FISA, and prolonged one of the most extensive surveillance measures in the United States. While Hepting has consequently been appealed to both the 9th Circuit Court and the Supreme Court, both courts have dismissed the case. While disappointed that their case has not provided a remedy to curtail unlawful surveillance, the ACLU and EFF will continue to concentrate their efforts in combating warrantless wiretaps through Jewel v. NSA.