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• Saturday, February 23, 2008 02:42 PM

  bystander

  Communications carriers are “indemnified” under 18 USC § 2511(2)(a)(ii)(B):

  ...No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, or agents, landlord, custodian, or other specified person for providing information, facilities, or assistance in accordance with the terms of a court order, statutory authorization, or certification under this chapter.

  In the order on motions to dismiss for Hepting v. AT&T (this is being appealed in the 9th Circuit):

  Plaintiff: On information and belief, the above-described acts [by defendants] of interception, disclosure, divulgence and/or use of Plaintiffs’ and class members’ communications, contents of communications, and records pertaining to their communications occurred without judicial or other lawful authorization, probable cause, and/or individualized suspicion.

  http://www.eff.org/files/filenode/att/308_order_on_mtns_to_dismiss.pdf

  Judge Walker said that “revealing whether AT&T has received a certification to assist in monitoring communication content should not reveal any new information that would assist a terrorist and adversely affect national security....Accordingly, the court DENIES the government’s motion to dismiss based on the statutory privileges and DENIES the privileges with respect to any certification that AT&T might have received authorizing it to monitor communication content.” (ibid.)

  So, I think it's more likely that AT&T (and others) can't show that some or all of the spying was certified and they and the administration are terrified that it will come out. Maybe the holdout got on board because the warrantless surveillance was stopped last January, or because of the PAA?

  —EJ Read EJ's other letters
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