Wiretap laws face new static

A bill in the House focuses on the touchy issue of immunity for ISPs and phone companies that aid the feds in spying.

WASHINGTON--A political debate about how to craft U.S. wiretapping laws has run aground on what might seem to be a minor point: should telecommunications companies that may have illegally opened their networks to intelligence agencies be immunized from lawsuits?

A new proposal that House Democrats released this week called the Restore Act would impose some additional privacy safeguards and oversight on a shadowy court that meets behind closed doors to approve foreign surveillance requests. The current version of the Restore Act does not immunize either telephone or Internet providers.

In remarks to reporters at the White House on Wednesday, President Bush stressed that the immunization requirement was non-negotiable. "It must grant liability protection," he said, "to companies who are facing multibillion-dollar lawsuits only because they are believed to have assisted in the efforts to defend our nation following the 9/11 attacks."

Without that requirement, Bush said, he would not sign a bill into law.

After news reports said AT&T and other major telecommunications carriers opened their networks to the National Security Agency after September 11, 2001, dozens of civil lawsuits have been filed against them. When the 9th Circuit Court of Appeals in San Francisco heard arguments in a pair of cases in August, the judges indicated they were likely to let the lawsuits proceed. A decision is expected at any time.

Although a former AT&T employee has alleged the company let the NSA set up shop in a San Francisco switching center, the company has refused to confirm or deny its involvement. Its attorneys have referred, however, to secret legal authorization from the Bush administration that might get the company off the hook.

A survey conducted last year by CNET News.com identified 15 large telecommunications and Internet companies, including BellSouth, Comcast, Qwest Communications International and EarthLink, that said they would not cooperate with the NSA without being compelled by law. Others, including AT&T, would not answer the question.

House Democrats are hoping to move quickly in votes on the Restore Act (PDF), which stands for Responsible Electronic Surveillance That is Overseen, Reviewed and Effective.

Two committee votes were scheduled for Wednesday with the goal of sending the measure to the floor next week. The House Judiciary Committee approved the bill by a 20-14 vote with three Democratic amendments unrelated to liability for telecommunications companies.

The House Intelligence Committee later approved the bill by a 12-7 vote along party lines, rejecting proposed amendments that would have shielded telecommunications companies, according to committee aides.

Should ISPs, telecoms get retroactive immunity?
In a meeting with reporters on Tuesday, House of Representatives Majority Leader Steny Hoyer said that retroactive immunity for telecommunications companies remains a possibility--"it is not off the table"--but warned that Congress needs more information before it would extend such a sweeping liability shield.

"To give immunity at this time would be a blind immunity, not knowing what in fact was done, not knowing what we are immunizing," Hoyer said. "We're obviously very concerned about knowing what they're doing."

The reason why liability protections don't appear in the Restore Act, he said, is that Congress has not received information it needs from the Bush administration to determine how its surveillance programs work and the role that private companies have played in them.

The White House informed congressional staffers on Friday that it intends to "assemble" the documents containing that information by October 22, according to senior House aides. But they didn't actually commit to turning over the documents, and that timeline wouldn't work if the House hopes to vote on the bill by October 17.

"The Fourth Amendment requires individual warrants if Americans are involved."
--Caroline Fredrickson, director, ACLU's Washington legislative office

In early August, just before Congress left town for a month's vacation, politicians approved a law called the Protect America Act of 2007 that significantly expanded federal surveillance power under the Foreign Intelligence Surveillance Act, or FISA.

That law immunizes telecommunications companies for complying with subsequent surveillance orders, but does not protect them from lawsuits arising from clandestine cooperation with the NSA prior to August. It has been attacked by libertarians and some Democrats for going too far; House Speaker Nancy Pelosi even said the legislation "does violence to the Constitution of the United States."

The Protect America Act expires in February, which means that Congress will feel pressured to enact some sort of renewal during the next few months.

Confronting the Fourth Amendment
Other components of the Democrats' new Restore Act legislation are just as contested. Bush said that in addition to retroactive liability protection, any bill must give the CIA and NSA sufficient "flexibility," and the Justice Department warned of reopening "dangerous intelligence gaps" that existed before the Protect America Act.

On the other side are privacy advocates and civil libertarians, who believe that the Democrats' proposal includes more protections and oversight than current law. Still, they want to amend it to include individual warrants before monitoring Americans' phone calls or e-mail messages.

"The problem in the draft legislation is the yearlong program warrants--sometimes called basket warrants, sometimes called blanket warrants," said Caroline Fredrickson, director of the American Civil Liberties Union's Washington legislative office. "Whatever you call them, there is no target, which goes against the Fourth Amendment. The Fourth Amendment requires individual warrants if Americans are involved."

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