ACLU Analysis of Telecom Immunity Provision in S. 2248, the Rockefeller/Administration FISA Bill

TELECOM IMMUNITY IN S. 2248,
THE ADMINISTRATION/ ROCKEFELLER FISA BILL

S. 2248, the Administration / Rockefeller FISA amendments bill grants the Attorney General the power to prevent any court or any public utility commission from reviewing whether state and federal laws were broken by the Administration’s warrantless surveillance after 9/11.

• Lets the Attorney General (AG) Kill Any Court Review of Warrantless Surveillance. S. 2248 grants the Attorney General the sole discretion about whether current cases against telecommunications carriers will proceed.  The AG need only certify in writing to the court that either the telecom didn’t participate in the program or that it did so in reliance on written assurances from the President that the program was legal.  The court does not have the authority to even determine if either of these are true – only to determine if the AG is abusing his discretion. 

• Lets the AG Gag Judges.  In addition to preventing court review, S. 2248 allows the AG to effectively gag the courts.  After forcing the courts to dismiss the cases they are hearing, it then prevents the court from ever declaring whether the dismissal was based on the telecoms alleged nonparticipation or whether they did actually spy on their customers but were getting a pass from the President. 

• Prevents States From Enforcing Their Own Privacy Laws.  A number of states have begun investigating whether their own states’ privacy laws were violated by the warrantless wiretapping and release of consumer records after 9/11.  S. 2248 even lets the AG intervene in these state actions and prevent the states from protecting their own citizens and enforce their own laws. 

• Prevents Citizens From Enforcing Their Rights and Hides Government Wrongdoing. In addition to killing the cases seeking monetary damages, S. 2248 even kills the cases that only seek a ruling from the court that the behavior was illegal and an order that it should not happen again in the future.  Instead of protecting the telecoms from liability, this power allows the government to shield its own wrongdoing and prevent any independent review of whether its wiretapping activities were indeed constitutional or criminal.

• Creates a Disincentive to Follow the Law in the Future. By letting the telecoms off the hook without any consequence – even a ruling that they’re behavior was illegal and should not continue – sends the wrong message to those who have access to our private conversations and records.  When the government asks them to break the law in the future, they will have precedent that Congress will cover their tracks.