House Democrats refuse to delete pending spy lawsuits

New bill would not shield phone and Internet companies from lawsuits alleging illegal cooperation with the Feds. It's already under attack from the White House.

Anne Broache Staff Writer, CNET News.com
Anne Broache
covers Capitol Hill goings-on and technology policy from Washington, D.C.
Anne Broache
3 min read

Congressional Democrats on Tuesday dug in on their refusal to pass a revamped surveillance law that could wipe out some 40 lawsuits accusing telephone companies of illegal cooperation with government spies.

According to summary documents provided by U.S. House of Representatives Majority Leader Steny Hoyer's office, Democratic leaders are preparing to debate yet another new bill that would not offer so-called "retroactive immunity" to companies that allegedly opened up their networks to the National Security Agency without a court order. At least in theory, that means cases like the one the Electronic Frontier Foundation filed against AT&T should be able to proceed.

In addition, the new proposal would allow the judge presiding over such cases to review otherwise classified evidence about the extent of government wiretapping. The Bush administration has argued such documents cannot be used in litigation because "state secrets" may be revealed.

The new bill's full text was not made available at press time, but it is expected to go to a floor vote as early as Thursday. Its passage, however, is hardly a sure thing, as it's already drawing attacks from Republican politicians and the president.

It's the latest chapter in an ongoing tussle over "modernizing" the Foreign Intelligence Surveillance Act of 1978, or FISA for short, which governs eavesdropping of foreign-related communications when U.S. persons are involved in the conversations. There's agreement among both political parties that certain legal changes are needed to make it easier for intelligence agents to snoop on foreign communications without a warrant. But there's sharp disagreement over how much power to give the attorney general in authorizing surveillance without court approval--and whether to shield corporations who may have helped the Feds to conduct allegedly law-breaking surveillance.

The new House bill would also do things like require an individualized warrant for targeting Americans abroad and establish a "National Commission on Warrantless Surveillance" to investigate and report on the administration's wiretapping activities, according to the summary documents.

And it does grant some degree of immunity to companies that respond to lawful requests from the government for aid, as federal wiretap law always has. Companies who provide "lawful assistance" would be shielded from lawsuits going forward, assuming the bill is passed, according to the majority leader's summary documents.

The new House proposal is not nearly as expansive as a White House-supported bill passed by a U.S. Senate majority last month. The new House version arrives after that chamber refused to take up the Senate version, vowing instead to draft a "compromise."

The battle has been mostly, but not entirely, split along party lines--some more conservative Democrats have promised to reject a bill that does not contain retroactive immunity. Both President Bush's press secretary and Rep. Lamar Smith (R-Texas), ranking member of the House Judiciary Committee, proclaimed the latest measure "dead on arrival" and accused the Democratic leaders of playing politics.

In a joint statement, the Justice Department and the Office of the Director of National Intelligence said they were "concerned that the proposal would not provide the intelligence community the critical tools needed to protect the country."

Rep. John Conyers (D-Mich.) and Sylvestre Reyes (D-Texas), the Democratic committee chairman leading the FISA rewrite process, retorted: "The American people expect government officials to wrestle with these difficult issues and reach common sense solutions that protect Americans from terrorism and preserve our civil liberties. Unfortunately, the president's advisers seem more inclined to issue 'my way or the highway' press releases concerning a bill the Administration hasn't even read."

Sen. John Rockefeller (D-W.V.), who has been leading the Senate's FISA rewrite, said on Tuesday that "considerable work" is still needed on the House bill but voiced confidence that the two chambers could work out a deal.