Telecom wiretap protection remains elusive: Congress not expected to act on requests before recess

Congress appears unlikely to act before its August recess on a Bush administration request to shield mobile-phone operators and other telecom carriers from lawsuits stemming from participation with the National Security Agency’s terrorist surveillance program.
The program-believed to have secretly begun under a broad executive order after the Sept. 11, 2001, terrorist attack before President Bush publicly confirmed its existence in December 2005-has dragged major telecommunications companies (including those with national wireless operations) into a heap of controversy that has manifested itself in lawsuits and bad publicity for service providers duty bound to protect subscribers’ privacy.
But the liability issue, while a huge legal matter for telecom carriers, has largely been overshadowed-if not lost for now-in the political firestorm between the Democratic-led Congress and the White House over the veracity of Attorney General Alberto Gonzales’ testimony before lawmakers on the surveillance program.
Seventeen lawsuits alleging civil-liberty violations against AT&T Inc., Verizon Communications Inc. and the United States have been consolidated in a federal court in San Francisco. Some suits are filed by individuals and civil-liberty organizations, others by state officials in Missouri, Maine, New Jersey, Connecticut and Vermont. The cases are overseen by U.S. District Judge Vaughn Walker. The U.S. government is pressing a motion to have the cases thrown out, with White House and Justice Department lawyers arguing the litigation would violate the government’s state secrets privilege.
Late last month, Walker refused to block the five states from pursuing investigations of telecom carriers regarding alleged disclosure of phone records to the NSA.
The Bush administration in April proposed legislative changes to the Foreign Intelligence Surveillance Act in response to changes in the telecom industry. But the Senate Intelligence Committee, frustrated with the White House’s lackluster responsiveness to inquiries about the warrantless electronic surveillance initiative, has been reluctant to act on the Bush administration’s draft legislation.
Interim steps
Still, Senate Intelligence Committee Chairman Jay Rockefeller (D-W.Va.) was scrambling last week to negotiate an interim, six-month reauthorization of the NSA’s surveillance program.
“Given the continued threat environment, and some recent technical developments, I have become convinced that we must take some immediate, but interim steps to improve collection of foreign intelligence in a manner that doesn’t compromise civil liberties of U.S. citizens,” said Rockefeller. “The administration has offered a proposal that would instead permanently grant the attorney general excessive surveillance powers by giving him sole authority to direct surveillance while completely removing the FISA court from the process. That is simply unacceptable.”
While the Rockefeller plan does not appear to include liability protection for telecom carriers, it does include a provision to maintain FISA court authority to compel compliance from telecom companies.
All told, comprehensive reform of the 1978 FISA law likely will not be pursued until after Labor Day at the earliest. Indeed, in a letter to congressional leaders, National Intelligence Director Mike McConnell reluctantly conceded the omission of any telecom liability provision in a FISA interim solution.
Heat on FCC
Telecom carriers are not the only ones in the line of fire. Also caught up in the NSA surveillance controversy is Federal Communications Commission Chairman Kevin Martin. Martin to date has rebuffed requests from congressional Democrats to investigate regulated telecom carriers insofar as whether communications privacy laws may have been violated as a result of their involvement in the NSA surveillance program. Whether Martin’s refusal to probe wireless and wireline carriers is legally legitimate remains unclear, in part because Gonzales apparently has not yet responded to the FCC chairman’s March 6 letter seeking confirmation of the agency’s current policy.
Industry protests CALEA moves
On a related front the mobile-phone industry, privacy advocates and others are protesting a Department of Justice effort to force wireless and wireline carriers to make additional wiretap capabilities available to law enforcement. DoJ said action is necessary because the industry standard required by Communications Assistance for Law Enforcement Act is deficient.
“DoJ seeks to require carriers to provide detailed information about each and every packet that flows through a carrier’s packet communications network [and] to provide granular location and tracking information despite the prior ruling of this commission and the Court of Appeals for the District of Columbia that limits location reporting to the beginning and end of call,” cellular association CTIA told the FCC. The trade group said the DoJ proposal would shift the cost and obligation of providing such data despite CALEA’s requirement that law enforcement secure the resources to receive intercepted information.
The Center for Democracy & Technology and others accused DoJ of attempting an end-run around CALEA and administrative procedures of the law.