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EFF appeal win reopens NSA dragnet spying case

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The Electric Frontier Foundation (EFF) has won its appeal to continue a case into massive warrantless wiretapping by the National Security Agency (NSA) using facilities within commercial exchanges.

The 9th US Circuit Court of Appeals ruled that the case of Jewel v NSA, which claims that after the 2001 terrorist attacks the NSA began large-scale monitoring of digital traffic, with the assistance of AT&T and others, can proceed. Mark Klein, a former AT&T engineer, claims that his employers let the NSA set up a monitoring station in the San Francisco exchange and allowed it unfettered access to client records and communications.

"Since the dragnet spying program first came to light, we have been fighting for the chance to have a court determine whether it is legal," said EFF legal director Cindy Cohn in a statement. "Today, the Ninth Circuit has given us that chance, and we look forward to proving the program is an unconstitutional and illegal violation of the rights of millions of ordinary Americans."

However, it wasn’t all smiles and sunshine. The court denied leave to continue on the EFF’s case against AT&T, for aiding and abetting the surveillance. The court upheld the 2008 Foreign Intelligence Surveillance Act (FISA) revision, voted for by the current president, which granted the telecommunications companies retroactive immunity from any actions carried out during the period.

"By passing the retroactive immunity for the telecoms' complicity in the warrantless wiretapping program, Congress abdicated its duty to the American people," said EFF senior staff attorney Kurt Opsahl. "It is disappointing that today's decision endorsed the rights of telecommunications companies over those over their customers." ®

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