House Approves Telco Immunity

The U.S. House of Representatives voted June 20 to approve a new version of the Foreign Intelligence Surveillance Act that Republican lawmakers contend will essentially end civil lawsuits filed against telephone carriers that participated in President Bush's warrantless domestic spying program.

The carriers allegedly provided customer telephone and e-mail records of U.S. citizens—often without a warrant or subpoena—to the government. More than 40 civil lawsuits have been filed against the carriers.

Under the new FISA bill, approved in a 293-129 vote, a district court will review the authorizations the White House used to induce telephone carriers to participate in the program. If the court determines the authorizations existed, the more than 40 cases pending against the carriers would not proceed.

The legislation now moves to the Senate, which is expected to vote on the bill as early as the week of June 23. The Senate approved the FISA renewal Feb. 12, granting retroactive immunity to the carriers, but House Democrats objected to the immunity, triggering months of negotiations.

"The lawsuits will be dismissed, and we feel comfortable that the standard of evidence that the law requires will be easily met," House Minority Whip Roy Blunt, R-Mo., said at a June 19 press conference announcing the compromise legislation.

House Majority Leader Steny Hoyer, D-Md., admitted the bill was "not perfect. It is a compromise." Hoyer stressed that the bill, while likely to take carriers off the civil liability hook, does not expressly grant immunity to the carriers.

"Notably, this bill does not address or excuse any actions by the government or government officials related to the President's warrantless surveillance program," Hoyer said in floor remarks. "Nor does it include any statement by the Congress on the legality of that program."

The EFF (Electronic Frontier Foundation), co-lead counsel in many of the civil cases, reacted sharply to the vote.

"We are deeply disappointed that the House leadership, which was so courageous in its previous opposition to telecom immunity, caved to the administration's fear-mongering and put this seriously flawed legislation on the floor for a vote," Kevin Bankston, an EFF senior attorney, said in a statement.

The EFF said the bill "requires dismissal of lawsuits against companies like AT&T that participated in the program as long as the companies received a piece of paper from the government indicating that the surveillance had been authorized by the president and was determined to be lawful."

The telcos contend that they relied on existing federal, state and local laws and assurances from the highest level of government when providing access to consumers' personal telephone calls and e-mail without a subpoena.