Original URL: http://www.theregister.co.uk/2008/06/20/congress_fisa_telecoms_immunity/

Congress bails out telcos for illegal snooping

Political compromise leaves civil liberties in the dust

By Burke Hansen

Posted in Government, 20th June 2008 12:02 GMT

Congress has largely capitulated to White House demands for widespread immunity for the telecoms industry, the New York Times reported on Thursday.

Although Congressional Democrats claimed the compromise reached between Democrats and Republicans as a victory for the rule of law, the real winners in this action are the telecoms giants who assisted the Cheney administration in its warrantless, and illegal, wiretapping program, and who are now the defendants in over 40 lawsuits across the United States. Republicans trumpeted that the suits would be summarily dismissed.

House Speaker Nancy Pelosi did manage to insert language in the bill stating that all presidential wiretapping authority in terrorism and espionage cases derives exclusively from the new legislation, in an attempt to prevent W- style freelancing where civil liberties are concerned. The bill also extends from three days to one week the emergency provision that currently allows emergency wiretaps for seventy-two hours before a warrant must be obtained from the Foreign Intelligence Surveillance Court.

The big news, however, was the extremely low bar set for telecoms immunity. Telecoms companies that freelanced with the government will merely have to demonstrate to a federal judge that they acted in response to a legitimate government request. The bill wipes the slate clean, but at least establishes a framework for future surveillance activities. Small consolation for civil libertarians, it would seem.

"Whatever gloss might be put on it, the so-called 'compromise' on immunity is anything but: the current proposal is the exact same blanket immunity that the Senate passed in February and that the House rejected in March, only with a few new bells and whistles so that political spinsters can claim that it actually provides meaningful court review," EFF Senior Staff Attorney Kevin Bankston said in a press release. "We call on all members of Congress to reject this sham compromise and maintain the rule of law, rather than deprive the millions of ordinary Americans whose privacy rights were violated of their day in court."

The existence of the program caused a political firestorm when first reported by the NY Times in late 2005, and some of the more brazen trampling of the Fourth Amendment will probably now never be known. The administration eventually acknowledged that the National Security Agency (NSA) had “accidentally” targeted thousands of Americans, and it now appears that an actual accounting of how much purely domestic warrantless surveillance occurred has been officially consigned to the dustbin of history.

By strangling the litigation in its infancy, the compromise gives a patina of legitimacy to the administration’s activities without allowing the court system to determine what laws, if any, were broken in their execution. It appears now that we will never know. ®