District Court proceedings and appeals
The case was heard at the United States District Court for the Northern District of California in 2006. AT&T requested that the court dismiss the case because the EFF did not have standing to sue, nor did any of its customers because none could prove that they had been surveilled personally.[8] The National Security Agency (NSA) and the U.S. government argued on behalf of AT&T in the suit, with the government stating that it intended to invoke the state secrets privilege in a bid to dismiss the action.[9] The U.S. Department of Justice filed a motion to dismiss the case on those grounds.[8]
Judge Vaughn Walker of the District Court rejected the government's motion, holding that "[t]he government has opened the door for judicial inquiry by publicly confirming and denying material information about its monitoring of communications content."[10] As a result, the government parties were ordered to furnish evidence that the surveillance of citizens was necessary for national security. AT&T was ordered to do the same regarding its cooperation with the program.[1]
AT&T, with continuing assistance from the Department of Justice, appealed this order to the Ninth Circuit in 2007.[11] While that case was in progress, Congress passed the FISA Amendments Act in 2008.[12] That statute granted retroactive immunity to telecommunications companies for past violations of the original Foreign Intelligence Surveillance Act of 1978, which in turn required warrants for such activities.[13]
Shortly thereafter, the Ninth Circuit dismissed the government's appeal and remanded the case back to the District Court, to determine the likelihood of success in light of the immunity gained by AT&T from the FISA Amendments Act.[11][14] The government filed another motion to dismiss the case, this time citing a specifically-written provision in the new statute that rendered any such legal actions moot.[15][16]
The EFF opposed the motion to dismiss, asserting that the FISA Amendments Act's retroactive immunity provision was unconstitutional.[17] In 2009, Judge Walker dismissed the case on the grounds that such a dismissal was required under the newly-passed FISA Amendments Act.[18]
The EFF in turn appealed this ruling, with the dispute again being heard at the Ninth Circuit.[19] In 2011, that court dismissed the appeal because the EFF could not argue that AT&T had any legal liability for cooperating with the NSA surveillance, especially in light of the retroactive immunity against lawsuits enabled by the FISA Amendments Act.[20] The EFF attempted yet another appeal to the United States Supreme Court, but in 2012 that court refused to grant certiorari,[21] thus affirming the lower court decision that the NSA's warrantless wiretapping program did not violate American law.
