The controversial FISA Amendments Act, which passed this summer over the fervent opposition of civil libertarians, was supposed to kill the lawsuits
filed by the Electronic Frontier Foundation and American Civil
Liberties Union against telecoms charged with complicity in the
National Security Agency's clandestine program of warrantless wiretaps.
But in a brief filed yesterday,
the two civil liberties groups urged a federal court to strike down the
retroactive immunity provision of that law, which they argue violates
The arguments offered up in the EFF/ACLU brief largely mirror those reported by Ars last month in our preview of the looming constitutional fight.
The groups also submitted to the courts two full boxes of evidence
designed to show that, contrary to administration claims, the
surveillance engaged in by the NSA was not narrowly targeted at
suspected terrorists, but swept up the communications of millions of
innocent Americans. Those claims are outlined in a 60-page "Summary of Voluminous Evidence"
also provided to the court. EFF attorney Cindy Cohn told Ars that
their overview draws on public information to establish the "open
secret of widespread warrantless surveillance of ordinary
Americans-discussed in news reports, Congressional testimony,
whistleblower evidence and administration admissions "
Five for fighting
The arguments against immunity fall into five main categories.
First, the plaintiffs charge that Congress has illegitimately sought to
block judicial redress of a Fourth Amendment claim-in essence,
preventing the court from considering whether a constitutional right
has been violated. This may sound odd insofar as the suit presents a
claim against private actors-the telecoms-rather than the government.
But EFF attorney Kevin Bankston explains that courts have in the past
recognized valid constitutional claims against private entities acting
essentially as agents or arms of the government, as he alleges the
telecoms did via their participation in the NSA program. EFF is also
suing the government directly, but Bankston argues that the government
cannot just foreclose one avenue for seeking remedy of an alleged
Second, as Ars reported previously, the brief argues that immunity violates the separation of powers established in Article I, Section 7
of the Constitution, by delegating to the executive branch excessive
discretion to determine when and how the law will apply. The argument
filed Thursday adds a novel analogy to the line item veto, which the
Supreme Court has found to be unconstitutional. Congress, according to this argument, has the right and responsibility
to make law, and while the Constitution gives the president the power to sign or
veto legislation, it does not allow him (or, a fortiori,
his subordinates) to tweak it according to his own policy
preferences-even if Congress would like to give him that authority. The
retroactive immunity provision of the FISA amendments, says Bankston,
gives the Attorney General "unfettered discretion" to selectively void
a preexisting privacy statute, without any providing any "intelligible
principle" binding his exercise of that authority.
Third, the attorneys argue that immunity violates their clients' due
process rights by allowing the Attorney General, rather than an
impartial magistrate, to effectively decide the outcome of pending
litigation. The plaintiffs vested claim against the telecoms, they say,
is a kind of property right that cannot be abrogated by the executive,
or even by Congress, but only disposed of by a judge.
The fourth argument is a more narrow objection to the secrecy clause
of the immunity provision, which direct the court to consider evidence
provided by the attorney general, establishing the telecoms'
eligibility for amnesty, in secret. This, the groups argue, conflicts
with their clients' First Amendment interest in access to documents in
a civil proceeding, and impinges on the court's prerogative to
determine the disposition of its own records. Of course, the judge
could potentially agree with this claim without invalidating the
broader immunity provision, or indeed, seeing any need to release any
of the secret evidence submitted by the government.
Finally-and perhaps most interestingly-the brief argues that even if
the immunity provision is constitutional, it does not apply to the NSA
surveillance program, or to the telecoms that participated in it. The
argument here rests on language in the FISA Amendments Act providing
immunity only if the attorney general certifies that a telecom rendered
cooperation in surveillance "designed to detect or prevent a terrorist
attack, or activities in preparation for a terrorist attack, against
the United States," and empowering the court to review any such
certification for "abuse of discretion."
This is where that "Summary of Voluminous Evidence" comes in. The
EFF and ACLU contend that the government was not engaging in
surveillance narrowly "designed" to prevent a terrorist attack, but
rather sweeping up Americans' communications in bulk. Here, Bankston
stresses, what matters is not what the government told the telecoms
about the NSA program, or even whether the government sincerely
intended or believed it to be sufficiently narrowly tailored to prevent
terrorism, but whether it was, objectively, so tailored. In light of
the documentation suggesting that the program was far broader in scope
than the Bush administration has claimed, the argument runs, the burden
is on the government to provide substantial evidence-not merely an
assertion-that the program was sufficiently narrow in scope to satisfy
the requirements of the immunity language.
Here we bump up against a question Ars has previously considered at some length:
Can computers eavesdrop? Because Attorney General Michael Mukasey has
denied the allegation that NSA conducted sweeping "dragnet"
surveillance, but he has done so in a conspicuously careful and
selective way. Mukasey's public filing with the court asserts that
there was no broad "collection" of the "contents" of communication "for
the purpose of analyzing those communications through key word
searches." But the EFF/ACLU brief argues that "the failure of the
Attorney General to define the phrase 'collection of
content' indicates that he may be subsuming within his certification a
dangerous new interpretation
of the Constitution and the surveillance statutes: that, even where the
government uses surveillance
devices to acquire the communications of millions of individuals as
part of a suspicion-less dragnet,
there is no government search or seizure of communications content ...
unless and until those contents are
processed by the government's computers, or made available for use by a
In the past, going at least as far back as the controversy over the
FBI's "Carnivore" surveillance software, the government has argued that
the "collection" or "acquisition" of a communication does not occur
until it is recorded in some human-readable format. On this
theory-which EFF and the ACLU vehemently reject-computer filtering of
large quantities of data does not yet constitute "collection"; only the
data actually flagged by the computer for later analysis is actually
"collected" or "intercepted."
The denial of collection "for the purpose of... key word searches" is
also rather specific. It does not appear to rule out, for instance,
filtering communications for particular voiceprint matches, or the use
of a particular language, or a specific regional accent. And since
"content" in surveillance law has traditionally been defined as
information concerning the "meaning or purport" of a communication, it
is not yet clear whether a filtering process keyed to those features
would be considered analysis of "content," or only of information about the communication, akin to a phone number or e-mail header.
To Bankston's chagrin, however, the government has not made that
argument explicitly in this instance. "We wish they would make it," he
says. "Verizon made it in one of their responses, but the government
hasn't. I hope the legal issues implicit in the Attorney General's
weirdly cabined reply become explicit, because those issues are at the
heart of this case."
In defense of immunity
The government has until early November to submit their reply to the
EFF/ACLU arguments. But Robert Alt, a legal scholar at the conservative
Heritage Foundation, told Ars he saw serious flaws in the civil
liberties groups' core contentions.
Most of their arguments, says Alt, "seem to arise from their
frustration at trying to get at the government through the telecoms.
They're trying as hard as they can to cram claims they'd like to make
against the government against the telecoms." One of these, he avers,
is their Fourth Amendment claim, which is properly targeted at the NSA,
rather than the telecoms that may have provided the spy agency access
to their networks. And he argues that even where constitutional rights
are at issue, Congress is free to establish rules limiting whether and
under what circumstances particular parties have a cause of action
without entirely eviscerating the general right to seek remedy.
Neither is Alt much impressed with the separation of powers
argument. "This is an ordinary delegation of an administrative
determination," he says. "Since the 1930s, the courts have recognized
the right of congress to delegate decisions of this sort to executive
agencies." Invoking the recent Wall Street bailout, Alt argues that the
discretion afforded the attorney general under the FISA Amendments Act
is, if anything, far more constrained than the broad leeway to dispose
of hundreds of billions of dollars that Congress recently granted
Treasury Secretary Henry Paulson.
On due process, Alt cites Dames & Moore v. Reagan and United States v. Pink,
in which the Supreme Court permitted the executive branch to block
American citizens' civil litigation against the governments of Iran and
the Soviet Union, respectively. Both cases turned in significant part
on the president's supremacy in question of foreign affairs under the
Constitution. But as far as the due process question is concerned,
argues Alt, those precedents still cut against the idea of any absolute
right to have a pending lawsuit settled by a judge without executive
As for the "design" of the NSA surveillance program, Alt invoked
Lyndon Johnson's characterization of the Gulf of Tonkin Resolution:
"It's like grandma's nightgown; it covers everything that needs to be
covered." Here too, he suggests, the intent of Congress was plainly to
block civil action against the telecoms. If the government's
surveillance procedures were poorly designed, he contends, that's an
issue to raise in a suit against the government.
EFF's Bankston, who is keeping his powder dry for the upcoming showdown
with the government, declined to respond to potential counterarguments
in any detail. But he emphasized his confidence that "the court will
agree it's an unconstitutional violation of separation of powers to try
to dictate to a judge how to decide our case."