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On surveillance, private sector to be protected from suits

It appears that the long and politically charged debate over renewed Foreign Intelligence Surveillance Act (FISA) authority is finally being settled in Congress, with the private sector protected from litigation orchestrated by a coalition of privacy absolutists, angry White House foes and trial lawyers.

House Majority Leader Steny Hoyer, Republican Whip Roy Blunt, Senate Intelligence Chairman Jay Rockefeller and Ranking Member Kit Bond issued a joint statement today announcing a compromise on FISA, the authority that has allowed intelligence agencies to monitor foreign electronics communications that may pass through a U.S. telecommunications nexus. From the statement:

The FISA Amendments Act, H.R. 6304, will increase the nation's security by strengthening the ability of the intelligence community to conduct lawful surveillance of terrorists, as well as protect constitutional rights by requiring warrants before the government can surveil any American.

"This bipartisan bill balances the needs of our intelligence community with Americans' civil liberties, and provides critical new oversight and accountability requirements," said Hoyer. "It is the result of compromise, and like any compromise is not perfect, but I believe it strikes a sound balance. Furthermore, we have ensured that Congress can revisit these issues because the legislation will sunset at the end of 2012."

Text of the bill is here.

Telecommunications companies assisted the federal government in post-9/11 surveillance of foreign communications -- including possible calls and e-mails from overseas to U.S. residents -- abiding by administration orders, but not judicially issued warrants.

This cooperation brought down about 40 lawsuits against the telecom companies, including from such parties as Studs Terkel (Terkel v. AT&T Corp., 441 F. Supp. 2d 899 (N.D. Ill. 2006). His case was eventually dismissed for lack of standing.

The most prominent lawsuit was Hepting v. AT&T, a class-action lawsuit against the company representing a collection of wild accustions about unfettered wiretapping. Activists like the ACLU and the Electronic Frontier Foundation drove the public debate, with the trial lawyers keeping a low profile. Bloggers and others of the Bush-hating left provided the political energy.

Jed Babbin of Human Events summarized our personal view of the issue in a column today: "These lawsuits aren't merely the latest evolution in class action ambulance chasing. They are a form of 'lawfare': the use of the courts to interfere in America's conduct in the war the terrorists are waging against us."

But the new "compromise" -- betrayal, to the left -- appears to provide legal protection to the telecom companies.

Short version of the legislative history: The Senate passed S. 2248, the FISA Amendments Act, in February by a vote of 68-29. This bill included bipartisan language from the Senate Intelligence Committee that granted retroactive immunity from the private lawsuits against the telecom companies, provisions that withstood repeated challenges from Sen. Russell Feingold (D-WI), Sen. Chris Dodd (D-CT) and others. (For the committee's explanation of immunity, go here.)

The Senate bill would have passed the House with bipartisan support, but under pressure from the activists -- especially on telecom immunity -- Democratic leadership hemmed, hawed and delayed before passing a bill that provided some political coverage but really only punted on the issue (H.R. 3773). In the meantime, a clock was ticking: Surveillance warrants authorized under the temporary Protect America Act were to expire in August. (This reasonable New York Times story covers that angle.)

The new immunity language contained in Section 201 includes a judicial review. As CQ Politics explains: "Under the bill, a rewrite of the 1978 Foreign Intelligence Surveillance Act, a federal district court would rule that all existing lawsuits against third parties that assisted President Bush's warrantless surveillance program would be waived if there was 'substantial evidence' that they received written assurances that the program was legal and authorized by the president." And then the lawsuits would be dismissed.

Those condemning the language as immunity under in new clothes have a point. Since the assurances of the White House and Justice Department to the telecommunication companies have already been documented, it's hard to see how a district court could keep the lawsuits alive.

That said, the judicial review will serve to confirm that the telecoms operated in good faith, responsibly and in compliance with lawful orders. The plaintiff's bar will not be able to leverage activist anger into cash payouts, achieving foreign policy ends by suing the the private sector. And good corporate citizenship is, if not rewarded, at least not punished with crippling multimillion-dollar lawsuits.

We've written extensively (and oftentimes lonesomely) about this issue at the NAM's blog, Shopfloor.org. For those posts, please go here.

UPDATE (4:20 p.m.): AP has a good roundup. I should have also noted that the President had repeatedly said he would veto any bill that lacked immunity for the telecom companies.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.