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NSA beats warrantless wiretap rap

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A Federal judge has dismissed a complaint against the National Security Agency's (NSA) Bush-era warrantless wiretapping programme, prompting suggestions the US government is now able to mount mass surveillance operations unhindered by the courts or constitution.

Five AT&T customers sued the NSA after it emerged it had persuaded the telco to provide a wiretap in a major internet traffic exchange in San Francisco. The five claimed the programme, revealed by an AT&T whistleblower, had violated privacy laws.

Late on Thursday, Judge Vaughn Walker ruled that because the internet traffic of millions of Americans had been caught up in the dragnet, the harm alleged in the complaint was not specific to the plaintiffs, so the case should not proceed.

"The court has determined that neither group of plaintiffs/purported class representatives has alleged an injury that is sufficiently particular to those plaintiffs or to a distinct group to which those plaintiffs belong; rather, the harm alleged is a generalized grievance shared in substantially equal measure by all or a large class of citizens," wrote the Judge.

The government had also argued that the case should be dismissed because it would use its state secrets privilege to withold the necessary evidence, but the court did not rule on whether that was allowed. Barack Obama was criticised by civil liberties groups early in his presidency for authorising his attorney general to use the secrecy privilege, a tactic planned by Bush administration lawyers.

The Elecronic Frontier Foundation (EFF), whose lawyers brought the case in 2008, expressed deep disappointment.

"This ruling robs innocent telecom customers of their privacy rights without due process of law. Setting limits on Executive power is one of the most important elements of America's system of government, and judicial oversight is a critical part of that," said EFF legal director Cindy Cohn.

The group said it would appeal against the dismissal. The full ruling is here (pdf).

Under the Foreign Intelligence Surveillance Act (FISA), the NSA must get a warrant from a special secret court to carry out domestic wiretapping. In the wake of 9/11, however, Dick Cheney authorised it to harvest, analyse and store vast quantities of domestic communications without a FISA warrant.

Mark Klein, an AT&T engineer at the time, revealed that the San Francisco switching hub he worked at had a secret room where NSA staff operated. In 2008, FISA was altered to grant AT&T and other participating telcos immunity from court action. ®

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