Senate Surveillance Bill, Some Legal Protections

By October 19, 2007Briefly Legal, Communications

The Senate Intelligence Committee ordered out a new version of the FISA rewrite bill yesterday, the “Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007”. (Earlier posts here and here.) As today’s Washington Post reports, the committee decided that America’s national security would not be best served by making telecommunications companies the targets of big-dollar litigation for acting in good faith to meet the federal government’s intelligence requirements.

The bill, approved by the committee 13 to 2, would require a special surveillance court to approve the government’s procedures for deciding who is to be the subject of warrantless surveillance. It also would impose more restrictions on the government than contained in an emergency six-month law passed in August, which the Bush administration wanted to make permanent.

It would further give some telecommunications companies immunity from about 40 pending lawsuits that charge them with violating Americans’ privacy and constitutional rights by aiding a Bush administration’s warrantless surveillance program instituted after September 2001. That provision is a key concession to the administration and companies, which lobbied heavily for the provision.

See, when you use the word “lobbied” to describe the activity, for better or worse, that reads as “political” or “politically motivated.” But, again, here’s the Statement of Adminstration Principle on the House version of the bill, H.R. 3773:

It is a matter of basic fairness that providers who are alleged to have provided assistance to the Government in the wake of these terrorist attacks should not face liability claims. It also is critical to our national security that such companies be protected from litigation, since companies that face lawsuits for allegedly assisting the Government may be unwilling to provide assistance if and when it is needed to prevent future terrorist attacks.

A policy argument….

Meanwhile, more from the Post:

Democrats on the Senate Judiciary Committee, which must also approve the bill, have said they will not consider giving the companies immunity unless they first gain access to key administration legal documents underpinning the warrantless wiretapping program.

So legal immunity is just a bargaining chip? Is that a policy argument? You could forgive a few trial lawyers for feeling cheap and used.

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