Hepting v. AT & T Corp.

Section 802 of the Foreign Intelligence Surveillance Act, which provides that private parties assisting the government with intelligence gathering shall not be subject to civil liability, is constitutional.

A group of telephone customers (“Hepting”) sued various telecommunications companies (“AT&T”) for participating in warrantless eavesdropping on behalf of the National Security Agency ("NSA"). The district court found that AT&T was immune from liability under § 802 of the Foreign Intelligence Surveillance Act ("FISA"). Hepting appealed to the Ninth Circuit challenging the constitutionality of §802. Section 802 provides that no civil action may be taken against any person for helping the government gather intelligence if the Attorney General certifies that the assistance was pursuant to a court order, a national security letter, or a directive of the Attorney General. Here, the U.S. Attorney General Michael Mukasey certified that AT&T was protected under one of the certification requirements of the statute. Hepting challenged the constitutionality of the immunity provision based on three principle arguments: (1) bicameralism and presentment; (2) nondelegation; and (3) congressional interference with litigation. The Court held that the immunity provision did not violate the bicameralism and presentment requirements because it was passed as an amendment to the FISA and was not a form of legislative repeal. The immunity provision did not violate the nondelegation doctrine either, as there exists an intelligible principle to guide the Attorney General to protect intelligence gathering and national security information. By using a deferential standard of review, the immunity provision did not give Congress the ability to interfere in the litigation as the judiciary still adjudicates the case and did not abandon their authority. The Ninth Circuit rejected all of Hepting’s arguments and held that the district court did not error in finding § 802 of FISA to be constitutional as applied to the telecommunications companies. AFFIRMED with respect to the § 802 claims. REVERSED and REMANDED as to Anderson and Lebow's claims against the government.