CDT urges changes to wiretapping legislation

The Center for Democracy and Technology (CDT) has urged the U.S. Congress to make changes to a bill that would extend a controversial wiretapping program.

The CDT, a group that focuses on online civil liberties, called for the U.S. Senate to pass a substitute to the FISA Amendments Act, likely to be debated on the Senate floor later this week.

The legislation, as approved by the Senate Intelligence Committee, would reauthorize warrantless wiretapping of some U.S. residents' telephone and electronic communications in the name of protecting the U.S. against terrorists. One of the most controversial provisions would give telecom carriers immunity from civil lawsuit judgements for assisting the government wiretapping efforts, but CDT officials said Tuesday that there are other important debates raised by the legislation, including the role of the U.S. FISA (Foreign Intelligence Surveillance Act) court in overseeing the wiretapping program.

The Senate Intelligence Committee version of the bill, which was put together with help from President George Bush's administration, offers "no meaningful protection" to U.S. residents and limits the involvement of the FISA court in approving wiretapping, CDT said. Several civil liberties groups have called the wiretapping program illegal because it spies on U.S. residents communicating with oversees suspects without court approval.

"The biggest issue is, what's the role of the court in protecting the privacy of communications?" said Greg Nojeim, CDT's senior counsel, said during a Tuesday press conference. "Two years from now, or four years from now, or six years from now, when the bill sunsets, we won't be looking at immunity as the big issue. What will be the big issue is, how did this surveillance affect Americans? Were innocent people's communications routinely intercepted?"

Bush, in the past week, has repeatedly pressured Congress to pass a bill extending the wiretap authorizations. A FISA bill passed in August expires Feb. 1, "while the threat from our terrorist enemies does not," he said Saturday during a national radio address.

"Congress must take action now to keep the intelligence gaps closed -- and make certain our national security professionals do not lose a critical tool for keeping America safe," Bush said. "As part of these efforts, Congress also needs to provide meaningful liability protection to those companies now facing multibillion dollar lawsuits only because they are believed to have assisted in the efforts to defend our Nation following the 9/11 attacks."

Since the warrantless wiretapping program at the U.S. National Security Agency came to light in late 2005, civil liberties groups have filed several lawsuits against telecom carriers that allegedly assisted the NSA. About 40 cases are consolidated before the U.S. District Court for the Northern District of California and the lawsuits are moving forward there.

"Our view is the litigation should go forward as is," Nojeim said. "That makes the most sense to us, because there ought to be some accountability."

Congress has debated several versions of immunity. The CDT would prefer that Congress cap awards, but allow the lawsuits to go forward. However, the Senate Intelligence bill would require that courts dismiss civil lawsuits against carriers that assisted the NSA.

The CDT would prefer a substitute amendment from the Senate Judiciary Committee that's likely to come before the Senate during debate on the bill. That bill would give the FISA court more oversight of the wiretap orders, would prohibit the bulk collection of international communications and would sunset the bill in four years instead of six, as in the Senate Intelligence version.

Even better is a House of Representatives bill, the Restore Act, which would allow ongoing FISA court supervision of the wiretapping program, and would require prior court approval of wiretaps in most cases, CDT said. The House narrowly passed the Restore Act Nov. 15.