- Associated Press - Thursday, December 29, 2011

SAN FRANCISCO — A federal appeals court on Thursday said a 2008 law granting telecommunications companies legal immunity for helping the National Security Agency with an email and telephone eavesdropping program is constitutional.

A unanimous three-judge panel of the 9th U.S. Circuit Court of Appeals affirmed the lower court ruling that the Foreign Intelligence Surveillance Act, or FISA, passes constitutional muster.

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

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


The case stems from new surveillance rules passed by Congress in 2009 that include protection from legal liability for telecommunications companies that purportedly helped the U.S. spy on Americans without warrants.

“I’m very disappointed. I think the court reaches to try to put lipstick on a pig here,” said Cindy Cohn, legal director of the Electronic Frontier Foundation, who argued the case before the panel. “I think what Congress did was an abdication of its duty to protect people from illegal surveillance.”

In its ruling, the court noted comments made by the Senate Select Committee on Intelligence regarding the role of legal immunity in helping the government gather intelligence.

“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,’ ” Judge M. Margaret McKeown said.

Thursday did not bring all bad news for plaintiffs challenging the government’s surveillance efforts.

In a separate opinion on Thursday, a three-judge panel of the court revived 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 telecom companies in the surveillance program authorized by President George W. Bush.

Government lawyers have moved to stop such cases, arguing that defending the program in court would jeopardize national security.

The suits will be sent back to U.S. district court in San Francisco.

Emails seeking comment from AT&T and the Justice Department weren’t returned.