Court Orders Release of Telco Immunity Docs

The White House has until Dec. 10 to produce lobbying records involving the telecommunications industrys efforts to win retroactive immunity for its participation in President Bushs domestic spying program.

The decision late Nov. 11 by U.S. District Judge Susan Illston in San Francisco will allow the records to be released in time for the Senate debate on reforming the Foreign Intelligence Surveillance Act, which is set to begin as early as next week. The House version of the bill does not grant immunity for carriers who participated in the warrantless wiretapping of telephone calls and e-mail.

“We are pleased Judge Illston recognized that time was running out for these documents to make a difference in the legislative debate,” David Sobel, senior counsel at the EFF (Electronic Frontier Foundation), said in a statement. “She agreed that the administration is dragging its feet in making relevant information available and stressed that the public has a right to full disclosure before Congress acts on the pending telecom amnesty proposals.”

The EFF sued the White Houses ODNI (Office of the Director of National Intelligence) after its slow response to the EFFs FOIA (Freedom of Information Act) request to disclose information about any telecom lobbying activity for immunity. The EFF made the FOIA request Aug. 31.

The White House responded Sept. 10, acknowledging the FOIA request and claiming the ODNI would expedite the request. According to the ODNI, it identified about 250 pages of unclassified material and about 65 pages of classified material that were relevant to the FOIA request. The ODNI promised the documents by Dec. 31.

The EFF claims the Dec. 31 date is designed to keep the requested documents from contributing to the critical portion of the Congressional debate over telco immunity.

“[ODNI] acknowledges that [EFF] seeks the information it requested in order to inform the public debate over the FISA amendments Congress is currently and actively considering,” Illston wrote in her decision. “Nevertheless, [ODNI] characterizes as pure speculation [EFFs] argument that the information will be useless if it is produced after Congress amends the law.”

Illston found the ODNI position had no merit.

“Irreparable harm can exist in FOIA cases such as this because ongoing public and congressional debates about issues of vital national importance cannot be restarted or wound back,” she wrote.

The EFF is seeking all records from April through August concerning briefings, discussions or other exchanges that ODNI Director Mike McConnell or other ODNI officials have had concerning amendments to the surveillance act with telecommunications companies and members of Congress.

Included in the FOIA request is any discussion immunizing telecommunications companies or holding them otherwise unaccountable for their role in government surveillance activities.

“We look forward to making the records public and discovering what light they can shed on this very important issue,” Marcia Hoffman, an EFF attorney, said in a statement.

President Bush 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.

The FCC wont pursue an investigation of telecoms cooperation with the NSAs wiretapping activities. Click here to read more.

Verizon, AT&T and Qwest Communications International all contend they acted in reliance on existing federal, state and local laws. The carriers are also under a federal court order to neither confirm nor deny their participation in the program.

The carriers also contend that the 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.”

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 the issue, and Republican presidential hopefuls have also been mum.

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