NSA telecom immunity still unsettled in Senate

Due to procedural oddity, question of whether to shield companies from suits alleging cooperation with the NSA won't be resolved until final floor vote.

WASHINGTON--Democratic and Republican senators on Thursday did little to resolve the question of whether to shield telephone and Internet companies from lawsuits alleging they illegally cooperated with government surveillance programs.

By a 13-2 vote late last month, the Senate Intelligence Committee endorsed the idea of retroactive legal immunity, which would bring to an abrupt end a series of lawsuits including one filed against AT&T by the Electronic Frontier Foundation in San Francisco.

But, in an odd procedural twist, the Senate Judiciary Committee never voted on that portion of the legislation when the same bill came before it on Thursday. The committee did, however, approve other sections of the legislation, which would rewrite part of the Foreign Intelligence Surveillance Act and provide more oversight and privacy protections than earlier drafts. That vote was 10-9 along party lines.

"The full Senate will yet need to resolve the immunity issue," committee Chairman Patrick Leahy, a Vermont Democrat, said in a statement after the vote. "While I appreciate the problems facing the telecommunications companies, the retroactive immunity issue to me is not about fixing blame on the companies but about holding government accountable."

An aide to Leahy told CNET News.com afterward that there was no longer a quorum, meaning not enough senators were present to make a committee vote official.

Sen. Russ Feingold, a Wisconsin Democrat, had proposed an amendment that would have deleted the liability shield, but it failed by a 12-7 vote, according to a Leahy aide. Leahy was part of the minority that supported the amendment.

Feingold said through a spokesman that he plans to offer his amendment again when the bill goes to the Senate floor. Sen. Christopher Dodd, a Connecticut Democrat and 2008 presidential hopeful, has vowed to prevent the bill from going to a vote, as long as it cloaks corporations with legal protections.

The immunity shield overrides every other law, including state laws, criminal laws and privacy laws. It says lawsuits against companies in the past and future must be "promptly" dismissed, as long as the attorney general certifies that the cooperation was authorized. Any company that has "access" to "electronic communications" that are stored or in transit would be covered.

That definition sweeps in not only the telecommunications providers, such as Verizon and AT&T, that have already been subjected to lawsuits, but myriad other Web companies as well. Much less is known, however, about how much cooperation might take place with e-mail and instant-messaging providers.

Some companies, including Yahoo and Google, refused to comment in a survey conducted by News.com last year that asked: "Have you turned over information or opened up your networks to the NSA without being compelled by law?" Others, like Comcast and BellSouth, did reply in the negative.

At the beginning of Thursday's meeting, which lasted most of the day, Sen. Arlen Specter, the Pennsylvania Republican who serves as committee co-chairman, said he intended to offer an amendment to the bill that would allow a process called "substitution" to occur in the lawsuits. That would mean government lawyers would take the place of the telephone company or other parties being sued in any lawsuits that are brought.

Specter said he acknowledged "the good citizenship of the telecommunications companies for whatever it is they have done...we still don't know all of what that is. But I do not believe it is appropriate on the facts of this matter to grant retroactive immunity because of what has occurred here."

It's a variation on another idea he had pitched of granting "indemnity" to the companies. That would have meant the companies could still be sued, but the government--or in other words, taxpayers--would foot the bill for any damages awarded by the court.

The House of Representatives was expected to vote on , which does not currently include legal immunity for private companies, sometime Thursday night. Both that proposal and the amended version of the bill passed by the Senate Judiciary Committee face veto threats from the Bush administration, which argues they will undermine the government's efforts to snoop on rogue foreigners who wish to do Americans harm.

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