The U.S. Senate Judiciary Committee delayed Nov. 8 a scheduled vote on whether telecommunications carriers should be granted immunity for cooperating with the White Houses domestic spying program of telephone wiretapping and e-mail surveillance. The panel hopes to vote on the provision as soon as next week.
As part of the renewal of FISA (Foreign Intelligence Surveillance Act), the White House wants 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 House version of the FISA renewal currently includes no immunity for the carriers, but the Senate Intelligence Committee approved legislation Oct. 17 that includes immunity. The Senate Judiciary Committees working version calls for no immunity.
“A retroactive grant of immunity or pre-emption of state regulators does more than let the carriers off the hook,” Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, said during an Oct. 31 hearing on the FISA bill. “Immunity is designed to shield this administration from any accountability for conducting surveillance outside the law. It could make it impossible for Americans whose privacy has been violated illegally to seek meaningful redress.”
Read more here about the hearing on the FISA bill.
The New York Times first broke the story of the administrations warrantless wiretapping in late 2005, and USA Today later reported that the National Security Agency is using information provided by telephone carriers to mine tens of millions of calling records for data.
The carriers are under a federal court order to neither confirm nor deny their participation in the program. “Our company essentially finds itself caught in the middle of an oversight dispute between the Congress and the executive branch relating to government surveillance activities,” AT&T wrote to lawmakers Oct. 12.
Nevertheless, Verizon, AT&T and Qwest all contend they acted legally in reliance on existing federal, state and local laws.
“Current law … provides a complete defense to any provider who in good faith relies on a statutory authorization,” AT&T wrote in its Oct. 12 letter. “If the government advises a private company that a disclosure is authorized by statute, a presumption of regularity attaches.”
Democratic presidential candidates Barack Obama, Chris Dodd and Joe Biden all oppose granting immunity to the carriers. Other Democratic candidates, including Hillary Clinton, have not stated a position on immunity for telecom carriers. Republican presidential hopefuls have also been mum on the issue.
“It is time to restore oversight and accountability in the FISA program, and this proposal—with an unprecedented grant of retroactive immunity—is not the place to start,” Obama said in an Oct. 19 statement.
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