Unconstitutional FISA Spying and Immunity Deal Threatens Maine Complaint

Affiliate: ACLU of Maine
June 20, 2008 12:00 am

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The MCLU condemned the House vote on final passage on changes to the Foreign Intelligence Surveillance Act, which gives the telecommunications companies immunity and expands the National Security Agency warrantless surveillance. HR 6304 likely means an end Maine consumer privacy complaint before the Maine Public Utilities Commission. Both Maine Congressmen Allen and Michaud voted against the bill citing civil liberties concerns. Unfortunately the House voted 293 to 129 to approve the bill.

“With a note from the Attorney General, the telephone companies get automatic immunity, meaning they and the Bush Administration will no longer be held accountable for breaking the law,” said Shenna Bellows, Executive Director of the Maine Civil Liberties Union. “The worst part is that the House voted today to ensure that warrantless surveillance isn’t just part of our past – it’s our future too.”

H.R. 6304 states that all lawsuits in federal and state court shall be dismissed if the Attorney General certifies that the surveillance occurred “in connection with intelligence activity” and was authorized by the President.

In May of 2006, 22 Maine Verizon customers filed a privacy complaint with the Maine Public Utilities Commission. The federal government sued to stop the investigation. That lawsuit is one of dozens of lawsuits against the telephone company that have been consolidated in a single proceeding before a Federal Court in California. Notably, the privacy complaint against Verizon does not contain any request for monetary damages. All of the lawsuits against the telephone companies request a permanent cessation of warrantless surveillance. The Bush Administration requested that Congress move before any of the lawsuits are decided, although there is nothing that would prevent Congress from waiting to decide the immunity question after the courts have weighed in on the constitutionality of the warrantless spy program.

“Today the House gave the Bush Administration and the telephone companies a sweetheart deal that makes a mockery of our Fourth Amendment right to privacy,” said Bellows. “Now Mainers may never know if our privacy was violated by the Bush Administration and Verizon.”

Immunity is not the only problem with H.R. 6304. H.R. 6304 permits the government to conduct mass, untargeted surveillance of all communications coming into and out of the United States, without any individualized review, and without any finding of wrongdoing. The Foreign Intelligence Surveillance Court (FISA Court) only reviews general procedures for targeting and minimizing the use of information that is collected. The court may not know who, what or where will actually be tapped. H.R. 6304 further trivializes court review by explicitly permitting the government to continue surveillance programs even if the application is denied by the court during the appeals process.

The bill is available at: http://thomas.loc.gov/cgi-bin/bdquery/z?d110:h.r.06304:

The immunity provision is as follows:

Title VIII, “Protection of Persons Assisting the Government.” Section 802(a) provides: [A] civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be properly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that . . . (4) the assistance alleged to have been provided . . . was — (A) in connection with intelligence activity involving communications that was (i) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007 and (ii) designed to prevent or detect a terrorist attack, or activities in preparation of a terrorist attack, against the United States” and (B) the subject of a written request or directive . . . indicating that the activity was (i) authorized by the President; and (ii) determined to be lawful.

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