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Warrantless Wiretapping Decisions Issued By Ninth Circuit Court 156

sunbird writes "The Ninth Circuit yesterday issued two decisions in the Electronic Frontier Foundation's lawsuits against the National Security Agency (Jewel v. NSA) and the telecommunications companies (Hepting v. AT&T). EFF had argued in Hepting that the retroactive immunity passed by Congress was unconstitutional. The Ninth Circuit decision (PDF) upholds the immunity and the district court's dismissal of the case. Short of an appeal to the U.S. Supreme Court, this effectively ends the suit against the telecoms. In much better news, the same panel issued a decision (PDF) reversing the dismissal of the lawsuit against the N.S.A. and remanded the case back to the lower court for more proceedings. These cases have been previously discussed here."
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Warrantless Wiretapping Decisions Issued By Ninth Circuit Court

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  • Re:Nuremburg Defense (Score:5, Interesting)

    by tnk1 ( 899206 ) on Friday December 30, 2011 @12:20PM (#38539088)

    I think the point is that Congress can't retroactively make a law that holds someone criminally liable for something that they did in the past before the law was passed, but they *can* and always have been able to make a law that retroactively removes something that was a crime in the past. The idea is to protect people from being held accountable for something that was perfectly legal in the past, but there is no reason to have a protection to keep people as criminals even after the law that criminalized them was overturned.

    In this case, the problem is that it does allow illegal activity to be condoned officially later on, as long as they don't get caught until the law is passed. That said, I think it is a political question, not a judicial question. It may well be that a law accidentally criminalizes a well-meaning person who is actually guilty by the letter of the law, but not by the intent of its framers. For that reason, I'd probably have to agree with the court and state that nothing prevents Congress, as the legislative branch, from absolving or nullifying previous criminal behavior by legislation.

  • Re:Nuremburg Defense (Score:3, Interesting)

    by Transkaren ( 1925482 ) on Friday December 30, 2011 @12:28PM (#38539170)
    Let's be honest here: "I was just following orders" *should* be a valid defense, when you're referring to civilians. Is it *right*? No. But my understanding is that the Telecoms were given apparently-legal instructions by a legitimate authority, obeyed them, and then someone pointed out "Wait, that's not exactly kosher, people..." Did they (the telecoms) screw up? Absolutely. But there was an assumption that the telecoms made that the people in legal authority would not overstep their bounds. It's the same assumption we as civilians make every day - and the reason why we as a society prefer come down like a ton of bricks on anyone we find that violates that trust. Not because the crime itself is necessarily horrible (though it frequently is), but because by committing the crime through their offices, they stain the honor and/or sanctity of those offices. This isn't even entirely a governmental thing; it also applies to Doctors, Engineers, Religious teachers, Lawyers, and any of a thousand other situations. If a person with apparently legitimate authority tells you to do something that doesn't seem ridiculously out-of-bounds for their authority and you do it, you damned well should be protected.
  • by Tsingi ( 870990 ) <graham.rick@gmai[ ]om ['l.c' in gap]> on Friday December 30, 2011 @12:32PM (#38539212)

    Given the state of the laws in effect today, you'd be hard pressed to find someone who hasn't committed some kind of offense within the last month. It's more like "You're a criminal but you have nothing to be concerned about unless we want to enforce it"

    Not to mention that many many law enforcement agents are themselves guilty of violating the law.

  • Re:Nuremburg Defense (Score:5, Interesting)

    by shaitand ( 626655 ) on Friday December 30, 2011 @12:33PM (#38539230) Journal

    The problem is that the warrant-less wiretapping violates the constitution and congress lacks the authority to pass a law that allows it therefore congress cant just allow someone to do it and then pass a law granting them immunity after the fact either.

    Quite frankly they lack the authority and any judge worth their salt would toss the typical "we did it in the public interest" argument out. Clearly it is NOT in the public interest to subvert the public's right as guaranteed by the constitution.

  • Re:Nuremburg Defense (Score:2, Interesting)

    by Anonymous Coward on Friday December 30, 2011 @12:40PM (#38539302)

    Great. The Ninth Circuit just made it OK to use "I was just following orders" as a defense, if you're a telecom.

    No, what the Ninth Circuit said was, "if the US Government asks for your assistance in a national security matter and you act in good faith to comply with the existing legal requirements, you can't be prosecuted even if the Government is later found to have acted illegally." Which is as it should be. We want the private sector to cooperate with the government on national security matters. It's a bad thing to ask companies to cooperate with the government and then try to jail them later when they do even after they've tried in good faith to comply with all of the legal requirements existing at the time. Do that enough times and pretty soon the private sector will never cooperate willingly with the government under any circumstances even to the detriment of national security.

    If you want to hold somebody responsible, go after the government bureaucrats who ran the program and their lawyers who gave suspect legal advice at the time.

  • Re:Nuremburg Defense (Score:5, Interesting)

    by snowgirl ( 978879 ) on Friday December 30, 2011 @01:06PM (#38539648) Journal

    You raise a good point here. Traditionally, it's been well-upheld that a search isn't illegal if the person had immunity from anything that the government found. Namely, the remedy for an illegal-search is that the evidence and any further evidence collected solely as a result of that evidence is thrown out and cannot be used against you.

    No one was ever charged with a crime as a result of these wiretaps, so there's no remedy to grant.

    Like it or not, as one person said, Congress should not be able to absolve a constitutional violation, but they didn't. They absolved a STATUTORY violation, that of wiretapping. Wiretapping is not immediately a constitutional issue.

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