In a clear victory for transparency, U.S. District Judge Jeffrey S. White today ordered the government to release more records about the lobbying campaign to provide immunity to the telecommunications firms that participated in the National Security Agency (NSA)’s warrantless surveillance program. The government has been ordered to provide the records to the Electronic Frontier Foundation (EFF) by October 9, 2009.
EFF’s freedom of information request is part of their long-running battle to gather information about telecommunications lobbying conducted as Congress considered granting immunity to companies that participated in illegal government electronic surveillance. Immunity was eventually passed as part of the FISA Amendments Act (FAA) of 2008, but a bill that would repeal the immunity — called the JUSTICE Act — was introduced in the Senate last week.
“Today’s ruling is a major victory for government transparency,” said EFF Staff Attorney Marica Hofmann. “As
the court recognized, it was unlawful for the government to deny Americans access to this information in the midst of the debate over telecom immunity last year. We’re pleased these records will now be available to the public as Congress considers the JUSTICE Act.”
Officials in the Bush Administration’s Department of Justice (DOJ) and Office of the Director of National Intelligence (ODNI) were vocal supporters of the immunity proposals, and had denied EFF’s request for records, claiming that the records were protected by FOIA exemptions covering agency deliberations and other privileged communications. But in today’s order, the judge ruled that because the communications were with Congress and lobbyists, the exemptions did not apply. The judge also found that the identities of telecom representatives who lobbied for immunity could not be kept from the public on privacy grounds.
“Today’s ruling shows that aggressive use of the Freedom of Information Act is necessary to challenge government secrecy,” said EFF Senior Staff Attorney Kurt Opsahl. “We cannot allow the government to drag its feet in making relevant information available to the American public.”
EFF also represents the plaintiffs in Hepting v. AT&T, a class-action lawsuit brought by AT&T customers accusing the telecom of violating their rights by illegally assisting in widespread domestic surveillance. In June of 2009, a federal judge dismissed Hepting and dozens of other lawsuits against telecoms, ruling that the companies had immunity from liability under the FAA. EFF is appealing the decision to the 9th U.S. Circuit Court of Appeals, primarily arguing that the FAA’s immunity provision is unconstitutional in granting the president broad discretion to block the courts from considering the core constitutional privacy claims of millions of Americans.
For the full order:
http://www.eff.org/files/filenode/foia_C0705278/OrderGrantSJ-Sep09.pdf
For more on the litigation:
http://www.eff.org/issues/foia/cases/C-07-05278