Yesterday, the Supreme Court shut the door on a legal odyssey that lasted over six years, when they refused to reopen a case attempting to hold private telecommunications companies accountable for their participation in the Bush Administration’s warrantless wiretapping program.
The justices, without comment, declined to review a lower court’s December decision (.pdf) dismissing the EFF’s lawsuit challenging the NSA’s warrantless eavesdropping program. At the center of the dispute was 2008 congressional legislation retroactively immunizing the telcos from being sued for cooperating with the government in a program President George W. Bush adopted shortly after the September 2001 terror attacks.
After Bush signed the legislation and invoked its authority in 2008, a San Francisco federal judge tossed the case, and the EFF appealed. Among other things, the EFF claimed the legislation, which granted the president the discretion to invoke immunity, was an illegal abuse of power.
The warrantless wiretapping program basically dropped off the news pages after the passage of the FISA Amendments Act in 2008. But for those of you not around before then, this was a major cause of the progressive blogosphere. But it failed, as telecom immunity passed. EFF gallantly attempted to overturn the law and cancel its immunity for the telecoms, but to no avail. Basically, both political parties wanted the controversy to go away, and then it did.
For all we know, we still have a warrantless spying program, though because of the lack of accountability, we don’t know the full contours of it. We think that it probably includes some level of data mining, the gathering of massive amounts of private communications, including from innocent Americans, and analyzing them for certain content. Geotargeting through cell phone data could also be a feature. There’s a high confidence that the email, phone and text messages of potentially everyone in the country has been compromised at some level. Both the Bush and Obama Administrations have protected the knowledge of this as a state secret, so we cannot be certain about the specific nature of the ongoing surveillance. We do know there’s been a huge spike in electronic warrantless surveillance of late.
There’s one last strand remaining, in an EFF lawsuit against the government rather than the immunized telecoms, which currently sits in front of a district court judge. A hearing has been scheduled for next month. But judges typically grants a lot of deference to the government on the grounds of state secrets, and you can expect the Obama Administration to invoke that privilege.
But the telecom industry will never feel any accountability for their collusion with the federal government on warrantless surveillance. The political class saw to that.