EFF, Bush administration spar over telecom immunity

SAN FRANCISCO--A federal judge on Tuesday heard arguments in a case that centers on an important constitutional principle: can the Feds immunize any telecommunications company that violated the law by opening its network to government snoops?

That was the question debated in the courtroom of U.S. District Judge Vaughn Walker on Tuesday. Lawyers with the U.S. Justice Department, who sought to persuade Walker to throw out lawsuits pending against the telecommunications companies, told him the government engages in a variety of activities designed to "protect the heartland." Those in the Bush administration have said the lawsuits could expose state secrets, but the administration has never confirmed that it enlisted the help of any phone companies to conduct domestic surveillance operations.

Nonetheless, last summer Congress passed the FISA Amendments Act (FAA), a law that gives the U.S. attorney general the power to immunize telecom companies from lawsuits that accuse them of conducting unlawful spying at the bequest of the U.S. government.

Deputy Assistant Attorney General Carl Nichols told Walker that the proper decision was to toss out the lawsuits and not second guess the Bush administration.

Nonsense, said Cindy Cohn, an attorney with the Electronic Frontier Foundation, a group that advocates for the rights of Internet users. EFF has brought a class-action lawsuit against AT&T on behalf of customers and accuses AT&T of turning over communication records to the National Security Agency. On Tuesday, Cohn and the EFF asked Walker to throw out the federal statute and to tell Congress to start over.

Trying to get a district judge to buck the president and Congress is no easy feat, but EFF's three main legal arguments went like this:

•  Congress can't remove constitutional rights with a law. That is a cornerstone of a constitutional system like ours, Cohn said.

•  Unlike what has been publicized, the FAA statute doesn't grant immunity to phone companies. It gives the U.S. attorney general the right to dispense immunities to phone companies. "Congress is supposed to make laws, not write laws that hand lawmaking powers to the president," Cohn said following the hearing.

•  EFF also argued that there is too much secrecy involved in the process of reviewing the government's surveillance operations. Judge's like Walker could only review evidence supplied by the attorney general and that says EFF erodes the public's right to due process.

The immunity law was highly controversial in Congress, with some critics calling it a pardon for Bush. Cohn said the statute was an attempt by the Bush administration to cover up illegal acts.

"You don't need immunity if you haven't done anything wrong," said Cohn who has long accused the federal government of using AT&T's facility in San Francisco to house surveillance operations. "This isn't one little wiretap that went astray. They built a structure on Folsom Street that's permanent. That's not just a little foot fault over the constitution or the law. That is willful disregard and I think that the immunity law is their attempt to go back over and get Congress to paper it over for them."

At the beginning of the hearing, Walker started off by asking Justice Department attorneys why he shouldn't wait to see how President-elect Barack Obama's incoming administration plans to deal with the question.

"It would be very unlikely for any future Department of Justice to decline to defend the constitutionality of the statute," Nichols told Walker.

Walker didn't indicate when he might issue a decision.

CNET News' Declan McCullagh contributed to this report.