No Telco Immunity in Surveillance Bill, Privacy Groups Urge
The Senate Judiciary Committee should bar immunity for telecom companies, in the electronic surveillance bill set for markup Thursday, privacy groups said in a conference call Monday. “The best outcome would be to see the whole thing collapse,” said Caroline Fredrickson, director of the ACLU’s Washington Legislative Office. The committee faces a contentious markup Thursday on a bill (S-2248) that the Senate Intelligence Committee approved two weeks ago. It offers targeted immunity for any phone companies that helped in the president’s surveillance program.
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Some committee Republicans support the immunity provision, fearing that U.S. intelligence could be harmed if the dozens of lawsuits against the companies are allowed to proceed. But Judiciary Chairman Patrick Leahy, D-Vt., and Ranking Member Arlen Specter, R-Pa., weren’t convinced at a hearing last week (CD Nov 1 p5). Meanwhile, Sen. Christopher Dodd, D-Conn., has promised to filibuster any immunity bill that comes to the Senate floor.
Dodd, a presidential contender, is joined by powerful Democratic senators, including Russ Feingold of Wisconsin and Delaware’s Joe Biden, who say they will support a filibuster. Democratic presidential hopefuls Hillary Clinton, N.Y., and Barack Obama of Illinois have expressed guarded support for a filibuster, raising the issue’s profile. Clinton has said any measure must be carefully considered, and Obama has promised to oppose the bill in its present form.
But privacy groups acknowledged mounting pressure from the White House and the telecom industry to approve an immunity provision. But experts drew a distinction between the pleas for immunity and the pressure over the summer to pass a temporary “fix” to the Foreign Intelligence Surveillance Act that gave the executive branch the legal power to conduct its program. That law will expire in February. Meanwhile, nearly 40 lawsuits challenge the government’s authority to run the program and encourage phone companies to take part.
“It’s not surprising that people all over the country have been terribly upset about what they've heard” about the government’s program, said Ann Brick, ACLU staff attorney in California, where several of the suits are pending. “This is not the time to be asking for amnesty for phone companies,” she said. Brick added: “I think we can expect the Supreme Court to weigh in. These cases are about whether Congress and the phone companies can ignore rules about conducting surveillance.”
The Electronic Frontier Foundation said telecom providers “know what the rules are” and knew they were being asked to do something that violated the law, said EFF staff attorney Kevin Bankston. “This is an issue the courts need to answer,” he said. Bankston dismissed the “hue and cry” arguments some have put forward on behalf of telephone companies, suggesting that they acted out of a sense of urgency after Sept. 11. “We're not talking about the immediate weeks” after the attack, he said, pointing out that the alleged surveillance programs have been ongoing for several years.
“Retroactive immunity” for phone companies would preclude a judicial declaration of the role the executive branch should play in handling intelligence gathering operations that involve privacy concerns, said Emily Berman, a legal fellow with the Brennan Center for Justice. “No one wants to see information released that is not properly in the public sphere,” she said, but courts and judges can take proper care in protecting classified information. She argued that courts need to determine whether the executive branch exceeded its authority in the surveillance program by violating individual privacy rights, and decide whether phone companies had a duty to refuse to cooperate, as one carrier - - Qwest -- has said it did.
The House also is divided on the issue, Fredrickson said, and it’s unclear what may happen if the Senate approves S-2248. The House bill, which was pulled from floor consideration a few weeks ago over the immunity provision, is “far superior” to S-2248, she said.