FISA Update: 9th Circuit Sends Telecom Suit Back to District Court

The FISA Amendments Act, H.R. 6304, signed into law in July is beginning to work its intended effect on lawsuits against the telecommunication companies that assisted in government monitoring of foreign electronic communications after the terrorist attacks of September 11, 2001. The legislation provided retroactive civil immunity to the telecoms, provided they could demonstrate they were acting on instruction from federal authorities.

Today, the 9th U.S. Circuit Court of Appeals sent the most prominent of the anti-telecom lawsuits, the class-action Hepting v. AT&T, back to district court. According to a report in Wired, the order simply stated:

In light of the FISA Amendments Act of 2008, Pub. L. No. 10-261, we remand this case to the district court. We retain jurisdiction over any further appeals.

Presumably now AT&T will provide the needed documentation and District Judge Vaughn Walker will dismiss the lawsuit.

As Hans Bader of the Competitive Enterprise Institute discusses today at the OpenMarkets.org blog, the granting of retroactive civil immunity is clearly constitutional. It’s also a matter of good public policy: Punishing private companies for legally assisting in surveillance of America’s enemies would chill further assistance. And it’s certainly not a good idea to reward people — in this case, trial lawyers, privacy absolutists and leftist opponents of a strong national defense — who pursue policy disagreements in the courts, attacking private enterprise in the process.

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