In the last days of 2011, the Ninth Circuit Court of Appeals gave Verizon and AT&T a reason to celebrate by upholding the District Court ruling dismissing the TSP-related spying cases against them. Absent an appeal, 2012 will be the first year since 2006 without this litigation. The decision, however, is largely anti-climatic since it merely affirms the constitutionality of the immunity provision which was passed in an update to the Foreign Intelligence Surveillance Act back in 2008. As soon as the immunity provision was passed, Attorney General Mukasey, who was in the office at the time, issued the required certifications to the court, in both classified and non-classified form, for the companies to qualify for the immunity and the government intervened and moved to dismiss the civil cases against the companies. The plaintiffs challenged the immunity provision on separation of powers grounds. They also initially challenged the certifications themselves, but did not pursue those arguments on appeal.
In its December 29, 2011 opinion, the Ninth Circuit Court of Appeals found that the Section 802 immunity provision is constitutional. Plaintiffs had argued that, among other things, the immunity violated non-delegation doctrine and amounted to Congressional interference with adjudication. Plaintiffs also argued that the immunity violated due process. The Court, in upholding the district court’s prior ruling that the immunity is constitutional, did not pause too long nor labor over any of the plaintiff’s arguments. For example, in rejecting the non-delegation doctrine argument, the Court noted that Section 802 not only provides the Attorney General with an “intelligible principle” by which to exercise his discretion, but provides five sets of circumstances when it would be appropriate for the Attorney General to issue a certification, including when a company had participated in the TSP and when a company had not engaged any surveillance activity.
Given that the Court showed no prevarication in its opinion, it is likely that this decision will mark the official end to what was a very interesting chapter in legal discourse over the government’s surveillance authority and the role of private companies.
