Industry Seeks Shield from Wiretap Litigation

Published December 1, 2007

U.S. telephone companies won immunity from liability when complying with presidential wiretap orders following a late October compromise between the White House and Congressional leaders over the interception of electronic communications between individuals in the U.S. and foreign countries.

The agreement was seen as a win for the Bush administration, which had sought power to grant immunity to national and regional telecom carriers who cooperate with the federal government in counter-terrorist activities, in case the latter are hit with privacy lawsuits.

Congressional Democrats, by withholding immunity, had sought to curtail the power of the Executive Branch’s so-called “warrantless wiretaps.”

Under revisions to the Foreign Intelligence Surveillance Act (FISA), signed into law by President George W. Bush in August, the U.S. government can monitor communications between U.S. citizens and individuals outside the country without seeking advance approval from a special FISA court.

At issue is whether telcos should face potential civil penalties and liabilities that could reach the billion-dollar range due to corporate acts of good faith or patriotism in assisting the National Security Agency (NSA), either in case of error or if a court later strikes down FISA.

Civil Liberties Groups Opposed

Last year, the American Civil Liberties Union (ACLU) and several other groups filed sweeping private lawsuits against AT&T, Verizon, and the Department of Justice (DoJ), which oversees investigations against suspected terrorists. Although early rulings last year found NSA’s wiretapping program unconstitutional, the cases are still winding through the federal court system and could be stopped on national security grounds.

Other critics of the NSA program and any loosening of FISA have included the Electronic Frontier Foundation, American-Arab Anti-Discrimination Committee, First Amendment Foundation, and National Association of Criminal Defense Lawyers.

After the September 11, 2001 attacks, U.S. phone companies helped NSA and DoJ set up a telephone call and e-mail tracking and surveillance program aimed at detecting international and domestic terrorists outside the normal court warrant system. The NSA program was considered a classified communications activity–intended to protect the country against terrorists at home and abroad–until revealed by national press in 2005 and then confirmed and defended by government testimony in Congress.

Does Not Quell Debate

The White House’s position reportedly has drawn a better reception in Congress among Republicans than Democrats.

GOP members claim immunity is necessary to protect the companies that responded to legal presidential orders to fight terrorists following 9/11. Some Democrats say the proposal is vague and could unduly promote illegal government behavior and protect wider categories of corporate or individual assistance to illegal government spying.

If any new bill connected with the White House proposal for FISA surfaces, the scrutiny is likely to start at the Senate Intelligence Committee as part of an overhaul of the act, which already includes the establishment of a special, confidential judicial panel to review surveillance requests and issue secret warrants to DoJ.

DoJ, NSA, and Central Intelligence Agency officials have said the court process can’t keep up with technology such as e-mail, instant messaging, and worldwide Internet telephony. (See “Changes to Federal Wiretap Law Stoke Controversy,” IT&T News, October 2007.)

Pols Debating

Sen. Ron Wyden (D-OR), an Intelligence Committee member, told national press he fears the White House proposal could go beyond protecting private companies and their employees by giving protections to government officials who may violate laws. “We are going to make sure that anything that is done is done in a narrow, targeted way,” he said.

But another committee member, Sen. Christopher Bond (R-MO), maintained, “The only question here is whether we should provide full liability protection to those companies that are alleged to have assisted the government in protecting the United States, and the answer is a resounding yes.”

Frank Barbetta ([email protected]) writes from Little Falls, New Jersey.