The Senate recently voted 69-28 in favor of a bill (H.R. 6304) that will provide retroactive legal immunity to telephone companies that participated in the Bush administration’s warrantless surveillance program. The bill’s passage ended more than a year of legislative debate over whether to immunize phone companies from lawsuits filed by subscribers alleging that the companies violated their civil rights by participating in the program.
The warrantless surveillance program began shortly after the terrorist attacks of September 11, 2001, when the White House issued an executive order authorizing the National Security Agency ("NSA") to eavesdrop on international phone calls and email messages of Americans and others inside the U.S. without obtaining the court-approved warrants that are normally required under the Foreign Intelligence Surveillance Act of 1978 ("FISA") for domestic spying. Prominent telephone companies such as AT&T, Verizon, and others participated in the program by granting the NSA access to private communications data. After the program was disclosed in late 2005, telephone subscribers filed over forty class action lawsuits against the companies, arguing that their civil rights had been violated by the disclosure of their personal information. The lawsuits threatened the telephone companies with billions of dollars in potential liability.
The recently passed bill, which President Bush has promised to sign into law quickly, will grant retroactive legal immunity to phone companies that participated in the program. Under the legislation, district courts will "promptly dismiss" the lawsuits upon determining that the defendant companies received directives from the administration to participate in the program. Because the Senate Intelligence Committee has made clear that the firms did, in fact, receive such directives, dismissal of the suits is now a virtual inevitability.
In addition to providing retroactive legal immunity to telephone companies, the legislation will allow the government to monitor foreign communications more easily. The government will not have to obtain warrants to monitor foreigners whose communications pass through or are stored by U.S. communications hubs, or to monitor U.S. residents communicating with suspected foreign terrorists (provided that the U.S. resident being monitored is not the target of the surveillance and that efforts are made to minimize the surveillance of his or her communications). Warrants will still be necessary to monitor U.S. residents who are themselves the targets of surveillance, and for Americans traveling abroad as well. In certain "exigent" circumstances—e.g., attorney general certification that there is probable cause to believe that a target is linked to terrorism—the government will be able to conduct emergency wiretaps on Americans for up to seven days without obtaining a warrant. In a concession to Democrats, the bill also reaffirms that FISA is the "exclusive" means of conducting surveillance wiretaps, a provision designed to prevent comparable programs from evading court scrutiny in the future. All provisions of the bill will sunset at the end of 2012.
As expected, the Senate rejected proposed amendments that would have weakened the bill’s immunity provisions. Proponents of the legislation praise the bill as vital for national security and important for ensuring that phone companies acting in good faith are not punished for their assistance with the program. Critics, on the other hand, argue that the legislation will prevent the administration from being held accountable for its actions and that, because most members of Congress have not been briefed on the warrantless surveillance program, granting retroactive immunity at this point is ill advised. Senate majority leader Harry Reid (D-NV), a critic of the bill, has promised to review the law next year, and lawyers representing plaintiffs in the lawsuits have vowed to challenge the immunity provision in federal court.