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FISA bill would prevent exposure of details of warrantless wiretapping

A federal wiretapping program could remain shrouded under a bill that would give telecommunications companies immunity.

The imminent passage of a bill that would grant retroactive immunity to telecommunications companies that aided the federal government's warrantless wiretapping program will effectively prevent the public from ever discovering the details of that program, privacy experts say.

The immunity provision ... covers up the program and short-circuits oversight.
Guilherme Roschke,
staff counselElectronic Privacy Information Center in Washington

The Senate on Tuesday approved the Foreign Intelligence Surveillance Amendments Act, which grants immunity to telecoms that participated in the president's warrantless wiretapping program. The measure is related to the Protect America Act, passed in August, which gave federal agents the ability to eavesdrop on virtually any electronic communication—including those on domestic networks—as long as the target of the wiretap is reasonably believed to be located outside the United States. The legislation does not require that a court issue a warrant for this kind of surveillance. The House of Representatives has passed a bill similar to the FISA Amendments Act, but without the provision absolving the telecom companies of liability for their actions in the execution of these wiretaps. The two chambers now must negotiate a compromise before the current extension to the PAA expires Friday night.

President Bush, who praised the Senate's actions on Tuesday, has said that he will veto any version of the bill that does not include immunity for the telecoms.

Various phone companies, including AT&T and Verizon, are facing dozens of lawsuits from customers angry over the wiretapping program and privacy advocates have said that those suits are essentially the only hope that the public has of discovering what exactly happened with the surveillance program. Whenever the new version of the PAA is passed, the immunity provision for the telecoms will wipe away that opportunity.

"The major privacy issue with this is the immunity provision and that it covers up the program and short-circuits oversight," said Guilherme Roschke, staff counsel for the Electronic Privacy Information Center in Washington. "The only way to find out what really happened is through those lawsuits."

Before passing the proposed extension to the act yesterday, the Senate considered several amendments to the bill, at least one of which would have removed the immunity for the phone companies from the legislation. That amendment was defeated and the Senate approved the extension by a wide margin, indicating that the broad support in the upper chamber for President Bush's preferred version of the bill.

In a prepared statement, Sen. Christopher Bond (R-Mo.), vice chairman of the Senate Select Committee on Intelligence, praised the Senate's actions. "Today, Republicans and Democrats in the Senate proved to American families that we can protect our civil liberties and keep our country safe from attack," he said.

In addition to the privacy concerns raised about the wiretapping program, security experts have said that the most likely methods for performing this kind of surveillance can introduce new vulnerabilities into the country's communications infrastructure. In a recent paper, several security experts, including Steve Bellovin of Columbia University and Peter Neumann of SRI International, said that there are a number of technical problems with such a surveillance program.

"U.S. communications security has always been fundamental to national security. The surveillance architecture implied by the Protect America Act will, by its very nature, capture some purely domestic communications, risking the very national security that the act is supposed to protect. In an age so dependent on communication, the loss could well be greater than the gain," the authors write in their conclusion. "To prevent greater threats to US national security, it is imperative that proper security—including minimization, robust control, and oversight—be built into the system from the start. If security cannot be assured, then any surveillance performed using that system will be inherently fraught with risks that are fundamentally unacceptable."

EPIC's Roschke agreed. "I think expanding the warrantless surveillance powers makes the communication infrastructure less secure," he said.

Because Congress is in recess next week and the current extension to the Protect America Act expires Friday night, Congress is considering extending the act another three weeks if a compromise on the two versions of the bill can't be reached before the deadline.

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