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Home > The Secrecy File > Archives > 2008 > February > 12 > Entry
Battle against telecom immunity is not over
Civil liberties groups are already moving past the Senate vote tonight on legislation that would overhaul the nation’s electronic surveillance rules and provide legal cover to telephone companies that participated in a secret terrorist eavesdropping program without a court warrant.
The 68 to 29 vote sends the Senate overhaul of the 1978 Foreign Intelligence Surveillance Act to the negotiating table with House leaders. And that is where groups like the American Civil Liberties Union and the Electronic Frontier Foundation are directing their attention.
There, House and Senate negotiators must hammer out major differences between the two chambers over how best to update the 30-year-old law.
The most controversial difference is granting the telecom industry retroactive immunity from some three dozen lawsuits alleging that the companies participated in President Bush’s terrorist surveillance program without court permission in violation of the law.
The House bill does not provide the telecoms with legal protection from those lawsuits and it demands greater oversight over future electronic surveillance.
“Immunity for telecom giants that secretly assisted in the NSA’s warrantless surveillance undermines the rule of law and the privacy of every American,” said Kevin Bankston, senior counsel at Electronic Frontier Foundation, a digital civil liberties group based in San Francisco.
EFF represents the a group of AT&T customers in a class action lawsuit accusing the telecommunications company of violating their rights by illegally assisting the government in domestic surveillance.
“Congress should let the courts do their job instead of helping the administration and the phone companies avoid accountability for a half decade of illegal domestic spying,” Bankston said.
The ACLU vowed to nix immunity from the final bill.
“This is a sad day for the rule of law,” said Tim Sparapani, senior counsel at the ACLU. “Today, the Senate voted to cover up illegal wiretapping.”
Time is running out. A temporary measure approved last August is set to expire on Friday when Congress recesses for the President’s Day holiday.
“We’ve lost every single battle we had on this bill,” said Sen. Christopher J. Dodd, D-Conn., leading the opposition to telecom immunity. “The question now is can the House do better?”
By a 31 to 67 vote, the Senate rejected an amendment from Dodd that would have stripped the immunity provision from the bill. Republicans voted as a block with 18 Democrats and Sen. Joseph Lieberman, an indepenent from Connecticut, against the amendment.
Dodd warned the battle is not over. If the final bill provides retroactive immunity for the telecoms, Dodd said he would filibuster the bill.
“We have created a precedent here that would suggest that the word of an American president is enough for 16 companies to basically vacuum clean every phone call, every fax, every email./././ without any governor on this at all,” Dodd said. “That was the single largest invasion of privacy in the history of the country. And we have just sanctioned it with retroactive immunity.”
But the Bush administration and the telecom industry argue that the telecommunications companies should not be punished for helping the country with an eavesdropping program sanctioned by the Justice Department and authorized by the president after the Sept. 11, 2001, terrorist attacks.
Leading House Republicans are already working to garner support for the Senate bill, raising the specter of a showdown over immunity.
Rep. Lamar Smith, R-Texas, said the Senate measure is superior to the House bill.
“I hope they have seen the light. I hope that they will take the Senate bill and pass it quickly, turn it around quickly, and continue to protect the American people,” said Smith, ranking member of the House Judiciary Committee. “Why are we making it more difficult to gather intelligence after 9/11 than before 9/11?”
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