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Supreme Court declines to hear telecom privacy-invasion lawsuit

October 09, 2012|By David G. Savage
  • The Supreme Court building
The Supreme Court building (Saul Loeb / AFP/Getty Images )

WASHINGTON -- The Supreme Court has ended a 6-year-old class-action lawsuit against the nation's telecommunications carriers for secretly helping the National Security Agency monitor phone calls and emails coming into and out of this country.

The suit was dealt a death blow in 2008 when Congress granted a retroactive immunity to people or companies coming to the aid of U.S. intelligence agents.

Without comment, the justices turned down appeals from civil liberties advocates who contended this mass surveillance was unconstitutional and illegal.

Later this month, the justices are set to hear a separate case to decide whether NSA officials can be sued for authorizing this allegedly unconstitutional mass wiretapping.

The suit against the telecom companies was triggered when Mark Klein, a retired AT&T engineer in San Francisco, revealed the company had allowed NSA agents to tap into its switching devices. He testified this meant that the NSA may "conduct what amounts to vacuum-cleaner surveillance of all the data crossing the Internet -- whether that be people’s e-mail, web surfing or any other data.”

More than 30 lawsuits were filed against telecommunications  companies, alleging they had violated their customers' rights under federal laws that require them to maintain the privacy of electronic communications.

At first, the companies asked to have the suits thrown out on grounds that the cases could reveal state secrets, a claim backed by the George W. Bush administration. That argument failed before a judge in San Francisco.

But a few months before Bush left office, Congress passed a measure to shield the companies. It said a civil suit against "any person for providing assistance to an element of the intelligence community shall be promptly dismissed" if the U.S. attorney general invokes this provision in a court case.

Then-Atty. Gen. Michael Mukasey invoked this provision in the San Francisco court where the 30 lawsuits had been consolidated. A judge then dismissed the suit, and the U.S. 9th Circuit Court of Appeals agreed last December that the case could not go forward.

Lawyers for the Electronic Frontier Foundation and the American Civil Liberties Union appealed to the Supreme Court, arguing that the retroactive immunity was an "unprecedented violation of the separation of powers" because it allowed the executive branch to shield itself from accountability in court. But in a one-line order, the court said it would not hear the case of Hepting vs. AT&T.

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david.savage@latimes.com

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