By John Leyden for The
Register.
This story has been reproduced with permission.
In a 2-1 decision, the Sixth Circuit Court of Appeals last week
dismissed a legal challenge to the warrantless surveillance program
brought by the American Civil Liberties Union (ACLU).
The action was filed by the ACLU on behalf of journalists,
lawyers and academics who say the spectre of Big Brother peering
over their shoulder is impeding their ability to do their jobs.
The plaintiffs said their concerns were well founded but the
Wisconsin appeal court dismissed
the case because none of the plaintiffs knew for sure whether or
not their communications had been placed under surveillance.
The ACLU said it was disappointed by the ruling which "insulates
the Bush administration’s warrantless surveillance activities from
judicial review and deprives Americans of any ability to challenge
the illegal surveillance of their telephone calls and e-mails". The
organisation said it was reviewing its legal options following the
ruling, including the possibility of taking its challenge to the US
Supreme Court.
In a separate ruling, also delivered on Friday, a California
appeal court ruled federal agents are entitled to monitor the web
sites a suspect visits or the email addresses he exchanges messages
with. The Ninth US Circuit Court of Appeals in San Francisco
compared surveillance of internet activities to "pen register"
devices, which were used to track the phone numbers suspects called
rather than monitor the content of a conversations. Such devices
were ruled legal by the Supreme Court in 1979, which ruled that
numbers transmitted electronically between a suspect and a phone
company do not enjoy any expectations of privacy.
Searches on suspects' surfing activities are no more intrusive
than obtaining a list of phone numbers dialed or examining the
outside of a mailed package, Judge Raymond Fisher said in the 3-0
ruling. The court made the ruling in considering a drug case
referred to it by a lower court in the San Diego area. Dennis Alba
was jailed for 30 years after he was convicted of running a lab
manufacturing Ecstasy. Part of the evidence against him came from
monitoring his activities on the net. He challenged the legality of
this evidence gathering on appeal, an application the appeal judges
rejected in confirming his earlier sentence, the San Francisco
Chronicle
reports.
The practice of so-called warrantless wiretapping came to light
after the New York Times reported in December 2005 that
the president had authorised the National Security Agency (NSA),
the US government's signals intelligence agency, to intercept
communications inside the US as part of the "War on
Terror".
The ACLU's action is only one of several lawsuits launched in
the wake of reports that AT&T and other telcos turned phone
records over to the NSA without judicial authorisation. The NSA's
"massive and illegal program" to wiretap and data-mine Americans'
communications remains the subject of an ongoing lawsuit by the
Electronic Frontier Foundation (EFF) and numerous others.
© The Register
2007
