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EFF Can Proceed in Warrantless Wiretapping Case

By Robyn Hagan Cain on January 03, 2011 | Last updated on March 21, 2019

The Ninth Circuit Court of Appeals ruled last Thursday that the Electronic Frontier Foundation (EFF) can pursue a Fourth Amendment claim against the federal government for collaborating with telecommunications companies in a warrantless wiretapping program.

Retired-District Judge Vaughn Walker originally dismissed EFF’s claim as a “general grievance,” rather than an actionable claim, several years ago, reports Wired.

Last week, a unanimous three-judge panel reinstated and remanded the case, finding that the claims "are not abstract, generalized grievances, and instead meet the constitutional standing requirement of concrete injury ... The claims do not raise a political question, nor are they inappropriate for judicial resolution."

While the EFF won its standing claim, it lost on a constitutionality ruling; the Ninth Circuit Court of Appeals upheld the 2008 retroactive immunity law that allowed the telecommunications providers to participate in the government's warrantless wiretapping scheme without the threat of civil accountability.

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

The EFF could be facing more disappointment when a district judge evaluates its warrantless wiretapping program complaint.

The Ninth Circuit Court of Appeals has instructed the district court to determine whether the government's assertion that the state secrets privilege bars this litigation. Since courts tend to defer to state secret assertions, President Obama's invocation of the state secrets privilege could put an abrupt end to the case.

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