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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."

Fredrickson says that an alternative would be to let the Protect America Act expire in February--which would still keep the 1978 FISA law in place--or to enact a different bill sponsored by Rep. Rush Holt, a Democrat from New Jersey, that the ACLU says would be more friendly toward civil liberties.

Marc Rotenberg, head of the Electronic Privacy Information Center in Washington, said the ACLU has a "legitimate" concern about blanket warrants.

"The problem is that the Fourth Amendment, particularly as translated to the wiretap statutes, presumes individualized suspicion, i.e. an actual target," Rotenberg said in e-mail. "It is this obligation that the administration wants to bury with the court's 'program review' or 'basket review.'"

Both the contentious Protect America Act and its controversial predecessor represent Congress' attempts at rewriting the 1978 Foreign Intelligence Surveillance Act, which the Bush administration has been arguing since last year is out of date. It generally requires that investigators obtain a warrant before snooping on communications pertaining to foreign intelligence or international terrorism when at least one party is located inside the United States.

"As much as everybody would like to talk about why the Protect America Act is doing what it's doing...we can't talk about that publicly because ultimately we'll ruin our sources and methods."
--Ross Feinstein, spokesman for the director of National Intelligence

The Bush administration has argued the process of obtaining individualized warrants for all of its targets is too time-consuming and at times impossible, given the agility of 21st century adversaries. It also has griped that the law is worded in such a way that requires investigators to get a warrant even for e-mails and phone calls between foreigners that happen to pass through wires and cables within the United States--a process that may be prohibitive because a large volume of the world's communications pass through switches that are technically on American soil.

The Democrats' new bill begins with language saying a warrant is not required for monitoring communications of any persons outside the United States, "without respect to whether the communication passes through the United States or the surveillance device is located within the United States."

Unlike the Protect America Act, the proposed Restore Act would force executive branch officials to seek permission from that court before eavesdropping on a person or group of people who may be communicating with people located in the United States.

Like the original FISA law, if the investigators are sure the communications they're tapping are occurring between foreigners located in foreign countries, they don't need a warrant. And in an emergency situation, executive branch officials would be allowed to authorize blanket snooping without a warrant for a 45-day period.

Yet there's still no requirement that the court orders target particular people, which civil libertarians believe cannot be reconciled with the Fourth Amendment's strict requirements. The bill merely requires those applying for the warrants to certify a number of generalities about the targets, including which "foreign power" is being targeted and that they're reasonably believed to be located outside the United States and are not U.S. persons--that is, an American citizen or lawful resident.

Shifting political dynamics
In addition to pressure from Republicans and the Bush administration, the sponsors of the Restore Act have to work with a band of 72 House Democrats (about one-third of the party's membership in that chamber) known as the Congressional Progressive Caucus.

That group released a statement laying out eight principles it expects any new surveillance laws to follow. Among them: FISA must remain the sole authority for gathering foreign intelligence, and "Congress should not grant amnesty to any telecommunications company or to any other entity or individual for helping the NSA spy illegally on innocent Americans."

The dynamics seem to be different on the Senate side. Senate Intelligence Committee Chairman John Rockefeller (D-W.Va.) is working with other committee members, including ranking Republican Kit Bond (R-Mo.), to craft a bill expected to be released next week, said Rockefeller spokeswoman Wendy Morigi.

"I can't really characterize the bill or negotiations at this point, as everything is on the table," Morigi said in e-mail.

Bush administration officials have emphasized the Protect America Act was urgently needed to bolster the nation's fight against terrorism. As Justice Department spokesman Dean Boyd put it in a recent interview, the law "has been of enormous value in reducing the intelligence gap that was identified by the director of national intelligence and other administration officials."

But so far, they have not offered specific examples supporting those claims. The one instance in which Director of Intelligence Mike McConnell publicly credited the Protect America Act's role in a terrorism investigation--that is, in a trio of arrests in Germany in August--turned out to be inaccurate.

"It's the intelligence community's job to protect sources and methods to be sure the intelligence community is getting the information we need," said Ross Feinstein, spokesman for the director of National Intelligence. "As much as everybody would like to talk about why the Protect America Act is doing what it's doing...we can't talk about that publicly because ultimately we'll ruin our sources and methods."

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