Telco Immunity Approved by Senate, Obama

After a morning of fiery debate, the U.S. Senate voted July 9 to grant retroactive immunity to telephone companies that participated in the White House's warrantless domestic spying program. The 69-28 vote came after the Senate defeated three amendments all aimed at either removing or modifying the immunity provision in the Foreign Intelligence Surveillance Act.

Democratic presidential hopeful Barack Obama voted for the three amendments to let civil lawsuits proceed against the carriers but voted for the overall bill. Presumptive Republican presidential nominee John McCain was not present for the vote.

The House approved the legislation June 20. The bill now heads to President Bush, who is expected to sign it.

The bill essentially provides the telephone companies legal protection from more than 40 civil lawsuits claiming the carriers provided customer telephone and e-mail records of millions of U.S. citizens—often without a warrant or subpoena—to the government.

"The companies acted in good faith, no matter the legality," said Sen. Kit Bond, R-Mo. "The companies acted on documentation provided by the administration."

Sen. Jay Rockefeller, D-W.Va., chairman of the Senate Intelligence Committee, said civil actions should be properly directed against government officials who directed the program. "We need to protect the companies that provided the intercept and collection. The government is the issue, not them."

Rockefeller added, "I am convinced the bill takes the right approach."

Under the new FISA bill, 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 civil cases pending against the carriers would not proceed.

"This is a matter for the courts to decide, not the legislative branch," said Sen. Chris Dodd, D-Conn. "Let the courts decide this issue. It is not the place of the U.S. Senate."

Dodd has led the opposition to the telco immunity for more than a year.

"Some may argue that in fact the companies received documentation from the administration stating that the president authorized the wiretapping program and that therefore it was legal," Dodd said. "These advocates will argue that the mere existence of documentation justifies retroactive immunity—that because a document was received, companies should be retroactively exonerated of all wrongdoing."

Dodd called that logic flawed.

"The question is, were their actions legal? It's a rather straightforward and surprisingly uncomplicated question," Dodd said. "Did the companies break the law? Either the companies complied with the law as it was at the time, or they didn't."

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. Bush had promised to veto any FISA legislation that did not include immunity for the carriers.

Bush said in February that without immunity for the carriers, "We may not be able to secure the private sector's cooperation with our intelligence efforts. If you cooperate with the government and then get sued for billions of dollars because of the cooperation, you're less likely to cooperate. And obviously we're going to need people working with us to find out what the enemy is saying and thinking and plotting and planning."

The New York Times first broke the story of the administration's warrantless wiretapping in late 2005, and USA Today later reported that the National Security Agency is using information provided by telephone carriers to mine 10s of millions of calling records for data.