Court Slams ‘Dragnet of Ordinary Citizens’

(CN) - The 9th Circuit on Thursday ruled that the federal government may have violated the basic liberties set out in the U.S. Constitution by conducting a "communications dragnet of ordinary American citizens."

At the same time, the federal appellate court that covers most of the western United States tossed out dozens of claims against the telecommunications companies that participated in the Bush administration's warrantless surveillance program.

The federal appeals panel in Seattle affirmed dismissal of 33 lawsuits against Verizon, AT&T and other telecom companies. Privacy advocates had teamed with residential telephone and Internet users to inundate the courts with lawsuits after news reports in 2005 revealed that President George W. Bush had authorized the NSA to conduct warrantless eavesdropping within the United States.

Bush confirmed the program's existence in a 2006 speech.

But while the consolidated federal cases awaited action in San Francisco, the U.S. Congress passed an amendment in 2008 to the Foreign Intelligence Surveillance Act (FISA) giving the telecoms immunity from civil actions for "providing assistance to an element of the intelligence community."

The government subsequently intervened in the multidistrict litigation and moved to dismiss all of the claims against the companies. U.S. District Judge Vaughn Walker granted the motion, and the 9th Circuit affirmed dismissal for the most part.

The plaintiffs challenged the FISA amendment on several constitutional grounds, but a three-judge panel ruled unanimously that the "statute is constitutional and does not violate Articles I or III of the Constitution or the Due Process Clause of the Fifth Amendment."

The panel did, however, allow two of the plaintiffs to move forward with their claims against the government, finding that FISA's immunity clause did not apply.

In a separate case filed in California's Northern District that was not part of the multidistrict litigation, the same panel of judges revived Carolyn Jewel's claims against the NSA, the Department of Justice and others, finding that her specific claims of harm by the government afforded standing to her and other plaintiffs.

"At issue in this appeal is whether Carolyn Jewel and other residential telephone customers have standing to bring their statutory and constitutional claims against the government for what they describe as a communications dragnet of ordinary American citizens," Judge M. Margaret McKeown wrote for the court. "In light of detailed allegations and claims of harm linking Jewel to the intercepted telephone, Internet and electronic communications, we conclude that Jewel's claims are not abstract, generalized grievances and instead meet the constitutional standing requirement of concrete injury."

It was the specificity and "particularity" of Jewel's claims that saved them from dismissal, as compared to the "scattershot" allegations of multidistrict litigants, McKeown added.

"Significantly, Jewel alleged with particularity that her communications were part of the dragnet," she wrote. "The complaint focused on AT&T and was not a scattershot incorporation of all major telecommunications companies or a blanket policy challenge. Jewel's complaint also honed in on AT&T's Folsom Street facility [in San Francisco], through which all of Jewel's communications allegedly passed and were captured." (Brackets added.)

"Thus, the harms Jewel alleges - invasion of privacy and violation of statutory protections - can be directly linked to this acknowledged surveillance program," McKeown wrote.

The 9th Circuit also affirmed dismissal of a separate class action that claimed the FISA immunity clause violated the takings clause of the Constitution. The panel did not consider the merits of this issue, finding instead that the District Court had lacked jurisdiction to hear the matter because takings cases are under the exclusive purview of the Court of Federal Claims.

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