Debate over telco immunity rages on between DNI, Senate

Setting up a fiery public showdown between the justice and intelligence communities and the Congress, the country's highest-ranking intelligence official argued publicly in favor of immunity for telcos that turned over private data.

In an op-ed piece published in The New York Times yesterday, US Director of National Intelligence Mike McConnell asked readers to support an extension of the terms of the Protect America Act (PAA), a temporary measure for authorizing electronic surveillance on persons outside the United States, due to expire next February 1. One of three key reasons for extending its provisions, the Director argues, is to continue to provide immunity for telecommunications companies that have cooperated with the US Government in surveillance operations.

"It is critical for the intelligence community to have liability protection for private parties that are sued only because they are believed to have assisted us after Sept. 11, 2001," Director McConnell writes. "The intelligence community cannot go it alone. Those in the private sector who stand by us in times of national security emergencies deserve thanks, not lawsuits."

The extension of the PAA is currently being debated by Congress as S. 1927, which authorizes the DNI's and the Attorney General's offices to launch electronic surveillance on persons residing outside the US, without prior authorization by a court and under the authority of the President. Those provisions come by way of amending the Foreign Intelligence Surveillance Act (FISA). A newer bill called the RESTORE Act recently passed by the House and under consideration by the Senate would instead let PAA lapse, replacing it with much stricter provisions, including provisions through which the DNI and Justice Dept. would need to obtain ex parte court orders during the period in which surveillance is launched.

The RESTORE Act is notable for its strict definition of so-called "non-United States persons," more clearly defined as denoting both non-citizenship and non-residency. The PAA is far less definite, referring only to persons believed to be outside US boundaries, but leaving the door open to include citizens.

But one key provision that RESTORE omits and that PAA clearly includes reads as follows: "Notwithstanding any other law, no cause of action shall lie in any court against any person for providing any information, facilities, or assistance in accordance with a directive under this section." In short, there's no reason for people to sue a private firm such as Verizon or AT&T for providing information to government agencies, even if that information involves themselves.

Last month, a former AT&T engineer testified before Congress that he was personally aware of a private room managed by the National Security Agency, where intelligence operations were being conducted. He was aware of this, he stated, because information about how the data entered that room was available from a publicly accessible desk drawer.

After citing support for his position from Democrats on the Senate Intelligence Committee, McConnell wrote, "Time for the Protect America Act is growing short, but there is still an opportunity to enact permanent legislation that helps us to better confront both changing technology and the enemies we face in a way that protects civil liberties."

McConnell's words provoked a heated response last night in The Huffington Post from Connecticut senator and Democratic presidential candidate Christopher Dodd.

"In what has become a sad pattern, Mr. McConnell, like many in this Administration past and present, tries to convince the public that we must abandon the rule of law to protect the telecom industry from being held accountable if they broke any laws," Sen. Dodd wrote.

Private citizens are suing cooperative telcos not because they turned over data, Dodd argued, but rather that they did so without a warrant. While provisions such as PAA may have protected government officials and agencies, he implied, that protection did not extent to private companies.

"By granting telecoms retroactive immunity, as Mr. McConnell advocates, and allowing for warrantless surveillance," Dodd continues, "we would essentially be saying that when it comes to intelligence gathering, there is no need for anyone in any circumstance to follow any law or even the Constitution so long as it is broadly defined as a matter of 'national security."'