New Telco Immunity Bill Draws Fire

U.S. Senator Arlen Specter introduced legislation Dec. 3 that would shift the responsibility for telephone companies' role in President Bush's warrantless domestic spying program to the government.

Under Specter's bill, those suing AT&T, Verizon and other carriers would have to change their legal claims from those against telecoms to claims that can only be made against the government. The bill would also allow the government to kill the litigation by asserting legal privileges that the government alone possesses.

The EFF (Electronic Frontier Foundation), the co-lead counsel in the nearly 40 pending lawsuits against the major telephone carriers, immediately objected to the proposal. The EFF contends that Congress should not grant amnesty to the telcos for providing the National Security Agency with the full content of billions of e-mails, text messages and VOIP calls.

"While EFF appreciates the attempt by Senator Specter to craft a compromise to save the litigation, the bill contains serious flaws that undermine the goal of allowing the courts to decide whether the carriers and the president broke the law when they engaged in over five years of warrantless surveillance of millions of ordinary Americans," EFF Legal Director Cindy Cohn said in a statement.

Click here to read more about the court-ordered release of telecommunications immunity documents.

Bush is pushing Congress to grant immunity to the carriers that agreed to turn over customer telephone and e-mail records—often without a warrant or subpoena—to the government. The White House launched the warrantless surveillance in the aftermath of the Sept. 11, 2001, terrorist attacks on the United States.

The immunity issue is tied to a renewal of FISA (the Foreign Intelligence Surveillance Act). The U.S. House refused to retroactively grant immunity Nov. 16 when it approved a FISA revision. The Senate Select Committee on Intelligence has approved telco immunity as part of its FISA bill while the Senate Judiciary Committee voted for no immunity.

Specter's bill is expected to go before the Judiciary Committee Dec. 6. The Senate plans to vote on a FISA bill by the end of the year.

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"The Judiciary Committee's instincts before Thanksgiving to separate out the substantive changes to FISA—which are tied to the sunset of the Protect America Act in February 2008—from the question of amnesty were correct," said Cohn. "Before tens of millions of Americans and their legitimate claims are kicked out of court, Congress owes the American people a transparent process—not a few weeks of pressured consideration and a single public hearing by the committee charged with protecting the Bill of Rights."

Specter's bill—the Foreign Intelligence Surveillance Substitution Act of 2007—is a sharp departure from the Pennsylvania Republican's stance prior to Thanksgiving.

"I don't think Congress can stand by, and in the face of what has happened, give carte blanche, a free ticket, grant retroactive immunity to suggest to future administrations that they can ignore separation of powers and they can ignore Congressional oversight and just run roughshod over the entire process without being held accountable," he said then. "The better practice is to allow judicial proceedings to take their course and let the courts make their own determinations."

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