FAQ: Telecom carrier immunity

Explaining the push for telecom immunity


Last week, President Bush urged Congress to grant major telecom companies legal immunity for any assistance they gave to the National Security Agency’s warrantless surveillance program. In this FAQ, we examine the issues behind telecom immunity, as well as the ramifications this could have for government-telco cooperation.

Last week, President Bush urged Congress to grant major telecom companies legal immunity for any assistance they gave to the National Security Agency’s warrantless surveillance program. In this FAQ, we examine the issues behind telecom immunity, as well as the ramifications it could have for future government-telco cooperation.

What do telcos need immunity from?

Lawsuits — in 2005, the New York Times reported that the Bush administration had authorized the National Security Agency (NSA) to eavesdrop on the conversations of people residing in the United States, including American citizens who contacted suspected terrorists internationally through phone or e-mail. In the wake of these revelations, the Electronic Frontier Foundation sued AT&T for participating in the NSA’s warrantless spying program.

What does EFF’s lawsuit allege?

The main claim is that AT&T violated the Foreign Intelligence Surveillance Act (FISA) by allowing the NSA to eavesdrop on calls made from within the United States to foreign terrorist suspects. FISA states that the government may only employ warrantless wiretapping if it is directed at “communications transmitted by means of communications used exclusively between or among foreign powers” or at the “acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power.”

In other words, the government can only use warrantless wiretapping against foreign targets communicating through foreign networks. Any wiretaps of communications involving U.S. citizens, legal residents or corporations require that the government get a warrant, as FISA states that warrantless wiretaps can only be used if “there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.”

More broadly, the suit also alleges that AT&T violated its customers’ First Amendment rights to free speech and free association and their Fourth Amendment rights to be free from warrantless unreasonable searches.

Are there any other suits pending?

According to a report in USA Today, Verizon, AT&T and BellSouth all agreed to turn over the call records of tens of millions of customers to the NSA without a court warrant. Two attorneys in New Jersey sued the three companies for allegedly violating privacy rights contained within the Communications Act of 1934, the Electronic Communications and Privacy Act and the 1986 Stored Communications Act. There are other suits that have been filed against these companies that allege similar infractions.

Did all the major telcos comply with the NSA’s requests to hand over customer phone records?

Qwest refused to comply with NSA requests for this program out of concern that doing so might violate federal privacy laws and thus open the company up to the same suits now facing Verizon and AT&T.

What will the suits’ impact have for enterprise users?

It’s unlikely that the suits will directly impact enterprise services, but their financial impact on the telcos could be steep. The Afran-Mayer suit, for instance, is asking AT&T, Verizon and BellSouth to pay $200 billion to their 200 million subscribers.

What has been the government’s response to this?

Bush has been openly urging Congress to pass a law that grants telcos retroactive legal immunity for all actions they took in complying with the NSA’s surveillance requests. Specifically, Bush said that any acceptable amendments to FISA “must grant liability protection to companies that are facing multibillion-dollar lawsuits only because they are believed to have assisted in the efforts to defend our nation following the 9/11 attacks.”

Additionally, Newsweek reported last month that the telcos have employed several lobbyists and lawyers with ties to both Republicans and Democrats in their efforts to get Congress to pass telecom immunity.

The Democratic Congress has made no final commitment on immunity for the telcos. However, House Majority Leader Steny Hoyer (D-MD) said it would be “grossly irresponsible for Congress to immunize companies without knowing whether their conduct was legal,” and both the House Intelligence and Judiciary committees last week voted against adding telecom immunity to their proposed FISA amendments. Qwest, AT&T and Verizon have all refused to answer Congressional inquiries into the nature of the government’s spying program.

What would the implications of telecom immunity be?

The Bush administration contends that telcos shouldn’t be punished for assisting the government with national security operations. If they were held liable for agreeing to government requests they thought were legal, the administration says, then companies in the future will have disincentive for cooperating with the government on vital national security matters.

However, civil liberties advocates say that granting telcos immunity would set a bad precedent in which companies would feel compelled to agree to legally questionable government demands without any fear of retribution.

“If we say that Congress should absolve these companies of a clearly written law, then those companies in future will feel more compelled to break the law,” says Timothy Sparapani, a legislative counsel for the ACLU. “Being a patriotic corporation means you have the duty to obey the law.”

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