The case has healthcare information technology implications in that at one point in the wake of the Sept. 11 attacks on the World Trade Center and the Pentagon, government documents show, medical records were listed as part of the feedstock of a sweeping $711 million Defense Department electronic surveillance program called Total Information Awareness.
The program aimed to use powerful computers to monitor multitudes of domestic electronic "transactions" in an effort to identify and pre-empt future terrorist strikes, according to those government records. Elements of the program were stripped of funds by Congress in 2003 over privacy concerns, but other components were allowed to survive, according to government records and published reports.
In the San Francisco case, Shubert v. Bush, Justice Department lawyers asked U.S. District Judge Vaughn Walker to toss out the lawsuit, on behalf of four New York residents against several top government officials, including Bush and Michael Hayden, an Air Force general, now retired, who had served in the Bush administration as both director of the National Security Agency, the Defense Department's electronic intelligence gathering service, and as head of the Central Intelligence Agency.
Lawyers for the Electronic Frontier Foundation, handling the lawsuit on behalf of the plaintiffs, allege the government violated the Constitution's Fourth Amendment ban on illegal searches and seizures and the Foreign Intelligence Surveillance Act, a federal wire-tap law covering domestic surveillance in national security cases.
The plaintiffs allege in court documents that the government has conducted a "dragnet" electronic surveillance program that taps the nation's fiber-optic communication system and monitors the e-mails, phone calls and other electronic messages of millions of Americans without court-authorized warrants.
The government, meanwhile, in its court filings, says even confirming or denying that it is running a domestic wiretapping program, much less one that might have tapped the communications of the plaintiffs, would require disclosing classified information about intelligence-gathering methods that would jeopardize national security.
The Associated Press quoted Kevin Bankston, a lawyer for the Electronic Frontier Foundation, criticizing the Obama administration for essentially adopting the Bush legal position of a broad approach challenging disclosure of not just specific evidence but an entire case, "even though candidate Obama was incredibly critical of both the warrantless wiretapping program and the Bush administration's abuse of the state secrets privilege."
In June, Walker tossed out a number of class-action lawsuits against U.S. telecommunications companies in which plaintiffs alleged the companies had illegally taped their communications. Walker cited civil immunity granted to the companies by Congress. But Walker also ruled other civil lawsuits could go forward against the government because the congressional immunity provision did not apply to the government itself.