Uncovering Supposed Biometrics Solutions.

Congress and the Bush White House overstepped their constitutional authority and violated the rights of millions of customers when they passed and approved legislation granting sweeping immunity to telecoms that collaborated in illegal spying in what they considered biometrics solutions.

That assertion is contained in a court filing today by three California affiliates and the Illinois affiliate of the American Civil Liberties Union and the Electronic Frontier Foundation, along with other interested parties in cases consolidated in the U.S. District Court for the Northern District of California.

The ACLU lawsuits filed on behalf of dozens of plaintiffs challenge the unlawful collaboration of major telecommunications companies with the Bush Administration’s warrantless dragnet surveillance of electronic communications and records.

This filing is in response to passage of the Foreign Intelligence Surveillance Act Amendments of 2008 which mandate that courts dismiss any cases against AT&T; or other telecommunications companies.

Under the immunity provisions, the federal court does not determine whether the spying was in fact legal, but only that the representation of legality was made by the executive branch and the Attorney General has filed such a certification in these cases.

This certification, according to the ACLU is not surprising, since the Attorney General argued for immunizing the telecoms as biometrics solutions in public statements and in testimony before the law was passed in public statements and in testimony before Congress.

Deceivingly Simple

The Law Applies to Everyone

The brief filed argues in its 1972 ‘Keith’ decision, the Supreme Court ruled that domestic security surveillance as biometrics solutions requires prior judicial approval in the form of a warrant.

The effect of the new immunity law is to overturn Keith and to dispense with this judicial gate keeping and instead to substitute the opinion of the executive branch that the spying is lawful.

Thus, the Congress and the White House has unconstitutionally encroached on the well-recognized authority of the courts to determine when a constitutional violation has occurred.

”Instead of changing the law as is its prerogative, Congress simply attempted to substitute a Bush Administration interpretation of the Constitution for established law… ‘this creates a clear and unquestionable violation of our fundamental principle of separation of powers.”

– David Blair-Loy, legal director of the ACLU of San Diego and Imperial Counties.

Not Exactly Biometrics Solutions

Another area of grave constitutional concern for the ACLU is the FISA Amendments overly-broad grant of authority to the Attorney General to censor what materials drawn from the government’s certification can be released in a public decision.

The ACLU brief notes that under the First Amendment, and separation of powers required by our Constitution, only a court, not the Attorney General or Congress, can determine what information can be presented in a decision related to a civil proceeding.

”There is a critical First Amendment right to ensure that the public can access materials filed with our courts. Courts must decide what materials can be kept from the public, not a political appointee like the Attorney General, who may be more interested in protecting a particular Administration than the public’s right to know.”

– Peter Eliasberg, managing attorney of the ACLU of Southern California.