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Court rules for telecoms' role in domestic eavesdropping

A US appellate court has ruled that telecom companies have the right to legal immunity for helping the government eavesdrop on private communications. But in a separate opinion, the court also ruled that customers can sue the government for tracking e-mail and phone calls.

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Although the Justice Department has not commented on this week’s ruling, the federal government can be expected to appeal to the US Supreme Court in this case. Given the makeup and history of the current high court regarding national security issues, it is unlikely that the decision relative to telecom companies’ immunity will be reversed or even taken up.

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In 2008, Congress granted telecommunications companies – including AT&T, Sprint Nextel, Verizon Communications Inc., and BellSouth Corp. – immunity for cooperating with the government’s intelligence-gathering activities. Lawmakers amended FISA to allow government spying on foreign terrorism suspects without first obtaining a court warrant.

At the time, then-Sen. Barack Obama voted for the granting of immunity to telecom companies, and the Obama administration continues to agree with the Bush administration that state secrets related to the war on terrorism are at stake.

In 2006, USA Today reported that “The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon, and BellSouth.”

Citing “people with direct knowledge of the arrangement,” the newspaper reported, “The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans – most of whom aren't suspected of any crime.”

“This program does not involve the NSA listening to or recording conversations,” the report continued. “But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.”

Privacy advocates expressed disappointment at the Ninth Circuit’s ruling regarding immunity for telecom companies.

"By passing the retroactive immunity for the telecoms' complicity in the warrantless wiretapping program, Congress abdicated its duty to the American people," EFF senior staff attorney Kurt Opsahl said in a statement. "It is disappointing that today's decision endorsed the rights of telecommunications companies over those of their customers."

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