Bush on Telco Immunity: No Compromise

By Roy Mark  |  Posted 2008-02-22

Bush on Telco Immunity: No Compromise

President Bush refused to budge Feb. 21 on his stance that telecommunications carriers should be given immunity for participating in the president's warrantless spy program. The carriers allegedly provided customer telephone and e-mail records-often without a warrant or subpoena-to the government.

The immunity issue is tied to a renewal of FISA (Foreign Intelligence Surveillance Act), which expired Feb. 14. The U.S. Senate approved the FISA renewal Feb. 12, granting retroactive immunity to the carriers. The House version, though, strips away the immunity for carriers.

The differences between the two bills have yet to be resolved between the Senate and House. Bush has vowed to veto any bill that does not include immunity for the carriers.

"I would just tell you there's no compromise on whether these phone companies get liability protection," Bush told reporters Feb. 21 on Air Force One as he traveled back from a trip to Africa. "The American people understand we need to be listening to the enemy."

The carriers contend they relied on existing federal, state and local laws and assurances from the highest level of government to provide access to consumers' personal telephone calls and e-mail without a subpoena. The carriers' cooperation with the government prompted more than 40 civil lawsuits claiming that the carriers violated the constitutional rights of Americans.

"In order to be able to discover the enemy's plans, we need the cooperation of telecommunication companies," Bush said Feb. 13 in praising the Senate version of the FISA renewal. "If these companies are subjected to lawsuits that could cost them billions of dollars, they won't participate; they won't help us; they won't help protect America."

Bush on Telco Immunity: No Compromise

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When Republicans refused to meet on Feb. 21 with Democrats to begin working on a compromise bill, House Majority Leader Steny Hoyer of Maryland said in a statement that Republicans "prefer to have a political issue rather than a strong new FISA bill in place as quickly as possible. Certainly Republicans do not really believe that the role of the House is to simply rubber-stamp whatever bills the Senate passes."

House Republican Whip Roy Blunt of Missouri dismissed Hoyer's comments in his own press statement.

"This meeting was nothing more than an attempt to give the majority political cover for irresponsibly allowing the Protect America Act to expire," Blunt said. "We already have a bipartisan bill that was supported by more than two-thirds of the Senate and enjoys the support of a majority of members of the House. The only remaining issue is how long House Democrat leadership will delay before scheduling this bipartisan bill for a vote."

The Electronic Frontier Foundation, the co-lead counsel in the nearly 40 pending lawsuits against the major telephone carriers, contends the carriers broke the law by providing the National Security Agency with the full content of billions of e-mails, text messages and VOIP (voice over IP) calls. The EFF claims it is an issue for the courts to decide.

The carriers insist that the real issue is between the White House and Congress. "Current law ... provides a complete defense to any provider who in good faith relies on a statutory authorization," AT&T wrote in an Oct. 12 letter to lawmakers. "If the government advises a private company that a disclosure is authorized by statute, a presumption of regularity attaches."

Bush said 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."

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