Senate Spares Telcos

Lawmakers defeat two measures aimed at holding telecom carriers legally liable for warrantless wiretaps of calls and e-mail.

The U.S. Senate rejected two efforts Feb. 12 to hold telecommunications carriers legally liable for their roles in President Bush's warrantless domestic spying program. The carriers allegedly provided customer telephone and e-mail records-often without a warrant or subpoena-to the government.

On a 31-67 vote, the Senate defeated an amendment to the FISA (Foreign Intelligence Surveillance Act) renewal that would have stripped away immunity from the carriers, who are currently facing civil lawsuits over their cooperation with the White House.

The vote happened on the same day as primaries took place in Washington, D.C., Maryland and Virginia. Presidential hopeful Barack Obama voted against immunity, Hillary Clinton was not present for the vote and John McCain voted for immunity.

On a 30-68 vote, the Senate also defeated an amendment that would have substituted the government for the telecoms in any civil action. The Senate is expected to vote on the overall FISA bill later Feb. 12.

"If we vote for [killing immunity], the most important partners we have will be discouraged in cooperating with us," Sen. Kit Bond, R-Mo., said before the vote, noting civil lawsuits also run the danger of disclosing classified information.

To read more about the telco immunity debate, click here.

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. President Bush has vowed to veto any FISA bill that does not contain immunity for the carriers.

Sen. Chris Dodd, D-Conn., who sponsored the amendment to strip telco immunity out of the FISA bill, said Feb. 11 in extended floor remarks, "Much more than a few companies and a few lawsuits are at stake. Equal justice is at stake-justice that does not place some corporations outside the rule of law."

Dodd was one of 30 Democrats voting to take immunity away from the carriers. Sixteen Democrats crossed the aisle and joined 51 Republicans in rejecting the Dodd amendment.

If the Senate ultimately passes a FISA renewal with telco immunity, the legislation will have to be reconciled with the U.S. House legislation, which does not grant immunity to the carriers.

"Congress does not need rush into a decision over granting immunity to phone companies that chose to cooperate with the president's warentless wiretapping program," U.S. Rep. Ed Markey, D-Mass., said in a Feb. 8 letter to his House colleagues. "As long as the administration refuses to give us a relevant debriefing, we should refuse to legislate in a vacuum."

According to Markey, "The only reason the administration is trying to force a snap decision now is because of their own desire to avoid scrutiny by either the courts or the Congress in their final months of power."

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."