Lawmakers have crafted a compromise on a bill that would extend controversial eavesdropping legislation and add provisions meant to protect telecommunications companies from private lawsuits, including several already under way.
Ending months of negotiations, the House of Representatives on Friday passed a bill that shields cooperating telecommunications providers from invasion of privacy lawsuits and extends the powers of government agencies to order wiretaps without a judge-issued warrant.
The House passed the update to the Foreign Intelligence Surveillance Act (FISA) by a vote of 293 to 129. All but one of those voting against the bill were Democrats.
Under the compromise bill, which the Senate will take up — and is expected to approve — next week, privacy lawsuits against telecom companies can be dismissed if the companies can demonstrate that they received assurance, in writing, from the attorney general that the spying was legal.
The compromise for extending the Foreign Intelligence Surveillance Act (FISA) came as part of a larger bundle of legislative action President Bush is pressing. Other components of the legislative agenda included additional funding for the war against terrorism in Afghanistan and funding for veterans’ benefits.
Presidential Seal of Approval
The compromise legislation on FISA will “help our intelligence professionals learn our enemies’ plans for new attacks,” President Bush said. “It ensures that those companies whose assistance is necessary to protect the country will themselves be protected from liability for past or future cooperation with the government.
“It’s vital that our intelligence community has the ability to learn who the terrorists are talking to, what they’re saying, and what they are planning,” he added.
Democrats did win some concessions as part of the deal. For instance, the bill calls for courts to review the procedural steps that led to a wiretapping that is the subject of a privacy lawsuit, although the American Civil Liberties Union dismissed the court review as “window dressing.”
Democrats also won inclusion of a sunset provision that ends the update in 2012 and the measure also requires an inspector general review of the entire FISA program.
A Retroactive Provision
Because it is designed to be retroactive, the immunity provision would likely halt as many as 20 lawsuits now pending in various jurisdictions around the country. The most high-profile case to date was brought by the Electronic Frontier Foundation and other groups on behalf of AT&T customers. The groups brought that suit after a whistle-blower revealed details of how National Security Agency operatives gained access to the phone giant’s switching stations in California.
Though key Democratic lawmakers fought hard against the immunity provision for some time, Republicans continued to demand it be included in any bill going forward, noted EFF staff attorney Kevin Bankston.
“There have been victories along the way, with a lot of lawmakers taking a stand against extending FISA and especially against including blanket provisions for immunity,” he told the E-Commerce Times.
The EFF was encouraging people to contact lawmakers ahead of the votes in the House and Senate, saying that it was clear that there was little public support for giving federal agencies more authority to eavesdrop.
Still in Judge’s Court?
Democrats also fought to have some judicial review provisions kept in the bill, meaning that the immunity for telecoms is not automatic. However, those provisions make it clear the intention of Congress is to protect the phone companies, Bankston said.
The Bush administration has said giving judges broad discretion in the privacy suits could enable national security secrets to be revealed during trials, while groups such as the EFF have argued that the cases can be handled in a way that protects those secrets while still evaluating whether phone companies have violated a decades-old law prohibiting them from wiretapping or eavesdropping on U.S. citizens without a judge’s order.
Telecom companies have been pressing for the immunity as well for a mounting number of cases beginning to appear in courts from Missouri to Maine and California to Vermont, many of which have been allowed to go ahead by federal judges around the country.
Congress has passed a number of short-term extensions to FISA in recent years, noted Marc Rotenberg, the executive director of the Electronic Privacy Information Center.
“Taking the courts out of the picture removes a major check and balance to what this or future administrations might feel are the legitimate parameters of the surveillance,” he told the E-Commerce Times. “There should be ways to handle the secrecy issues without shutting down legitimate privacy cases.”