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Tuesday, November 13, 2007

An Overview of Telecommunications Companies' Involvement in Domestic Espionage: Part II

by: Joseph Eros, Associate Editor, MTTLR

Editor's Note: This post continues yesterday's Part I, which discussed the background of the litigation against telecommunications companies for their involvement in domestic espionage by the NSA.

If the lawsuits are allowed to proceed, the plaintiffs may present testimony from witnesses claiming direct knowledge of AT&T’s close involvement with the NSA. Mark Klein, a retired AT&T technician, filed a declaration describing the installation of a secure room, accessed only by NSA-cleared personnel, in an AT&T switching facility. According to Klein, "the content of all the electronic voice and data" transmitted through AT&T’s switches was transferred into the NSA secure room.19

Documents presented by former Qwest CEO Joseph Nacchio during his trial on insider-trading charges could also reveal important evidence for the telecom suits: Nacchio claimed that Qwest lost NSA contracts because the company refused to share its customers’ calling information. However, the details of Nacchio’s allegations have so far been revealed only in closed-door court sessions.20

By the time the Ninth Circuit is ready to rule, though, its opinion may be irrelevant. President Bush has called for the planned amendments to FISA to include immunity for the companies who may have shared customer information with the NSA: "[FISA] needs to be changed, enhanced, by providing the phone companies that allegedly helped us with liability protection."21 The President has said he will not sign any FISA amendments unless they include immunity.22

Although few laws exempting specific industries from liability suits have been passed, there is a recent example. The Protection of Lawful Commerce in Arms Act,23 passed in October 2005, shields firearms manufacturers from suits for "the harm caused by those who criminally or unlawfully misuse firearm products . . . that function as designed and intended."24 Its enactment ended lawsuits against gun manufacturers by cities seeking compensation for the costs of gun violence.25

The Senate Select Committee on Intelligence has included an immunity provision into its FISA amendment bill:

Notwithstanding any other provision of law, a covered civil action shall not lie . . . and shall be promptly dismissed, if the Attorney General certifies to the court that the assistance alleged to have been provided by the electronic communications service provider was . . . in connection with an intelligence activity involving communications that was authorized by the President during the period beginning on September 11, 2001 and ending on January 17, 2007.26
No committee-approved House version of the bill includes a telecommunications immunity provision. Speaker of the House Pelosi has conditioned such legislation on House investigation of the surveillance program, saying that "you can't even consider such relief unless we know what people are asking for immunity from."27

Given the continuing disputes with Congress over supervision of classified activities, it seems unlikely that the House would be satisfied with the White House’s explanations the Bush Administration would be prepared to offer. So President Bush and the rest of us will probably have to wait for the Ninth Circuit to see if the AT&T and the other telecommunications companies can be held liable for following the NSA’s orders.

19  Klein Declaration in at Hepting v. AT&T, June 8, 2006, at ¶34, available at http://www.eff.org/files/filenode/att/KleinDecl-Redact.pdf.
20  Andy Vuong, Judge Denied Use of Spying Data, Denver Post, Oct. 11, 2007, available at http://origin.denverpost.com/breakingnews/ci_7141986.
21  President George W. Bush, White House press conference (Oct. 17, 2007), available at http://www.whitehouse.gov/news/releases/2007/10/20071017.html.
22  Peter Grier, Fight Over Court Role in US Eavesdropping, Christian Science Monitor, Oct. 12, 2007, available at http://www.csmonitor.com/2007/1012/p03s02-uspo.html.
23  15 U.S.C.A. § 7901.
24  15 U.S.C.A. § 7901(a)(5).
25  See Leslie Wayne, Smith & Wesson Is Fighting Its Way Back, New York Times, April 11, 2006, available at http://www.nytimes.com/2006/04/11/business/11guns.html.
26  Section 202 of the FISA Amendment Acts of 2007, as passed by the Senate Select Committee on Intelligence on October 18, 2007, at 45-46, available at http://intelligence.senate.gov/071019/fisa.pdf.
27  153 Cong. Rec. H11653 (daily ed. October 17, 2007) (statement of Rep. Pelosi), available at http://www.gpoaccess.gov/crecord/07crpgs.html by selecting October 17.

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Blogger Kurt Hunt said...

firedoglake is reporting that Senator Reid has pulled the telecom bill until next year.

December 17, 2007 at 11:09 PM  

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