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Federal Appeals Court Rules Telecommunications Companies Have Legal Immunity in Connection with NSA Program

In recent days, a federal appeals court ruled that a 2008 law granting telecommunications companies legal immunity for helping the National Security Agency with an email and telephone eavesdropping program is constitutional.

A three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously affirmed the lower court ruling that the Foreign Intelligence Surveillance Act (FISA) is indeed constitutional.

The appeal was involving a case that consolidated 33 different lawsuits filed against various telecom companies, including AT&T, Sprint Nextel, Verizon Communications Inc. and BellSouth Corp. on behalf of these companies’ customers.

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The plaintiffs were represented by lawyers including the San Francisco-based Electronic Frontier Foundation and the American Civil Liberties Union. They accused the companies of violating the law and the privacy of its customers by collaborating with NSA on intelligence gathering.

The case is rooted in the new surveillance rules passed by Congress in 2009; these included protection from legal liability for telecommunications companies that allegedly helped the U.S. spy on Americans without warrants.

Cindy Cohn, legal director of the Electronic Frontier Foundation, who argued the case before the panel was quoted as saying in the December 29th foxnews.com article, “Court OKs Immunity for Telecoms in Wiretap Case”: “I’m very disappointed. I think the court reaches to try to put lipstick on a pig here. I think what Congress did was an abdication of its duty to protect people from illegal surveillance.”

In its ruling, the court made note of comments put forth by the Senate Select Committee on Intelligence involving the legal immunity’s role in helping the government gather intelligence.

Judge M. Margaret McKeown was quoted as saying: “It emphasized that electronic intelligence gathering depends in great part on cooperation from private companies … and that if litigation were allowed to proceed against persons allegedly assisting in such activities, the private sector might be unwilling to cooperate with lawful government requests in the future.”

However, in a separate opinion, a three-judge panel of the court pointed to two other lawsuits that challenged the warrantless surveillance program. Two groups of telecom customers sued the NSA for violating their privacy by collecting Internet data from AT&T from telecom companies in the surveillance program authorized by President George W. Bush.

Government lawyers have made attempts to stop such cases, on the grounds that defending the program in court would jeopardize national security. The suits will be sent back to U.S. District Court in San Francisco.

America’s Foreign Intelligence Surveillance Act of 1978 is an Act of Congress, which put in place procedures for the physical and electronic surveillance and collection of “foreign intelligence information” between “foreign powers” and “agents of foreign powers”. This may also include American citizens and permanent residents suspected of being engaged in espionage and violating U.S. law on territory under United States control.

The National Security Agency/Central Security Service (NSA/CSS) is a cryptologic intelligence agency of the United States Department of Defense responsible for the collection and analysis of foreign communications and foreign signals intelligence, as well as protecting U.S. government communications and information systems, which involves cryptanalysis and cryptography.

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