Telecommunications Companies May Get Immunity from Senate in Wiretapping Bill

Telecommunications companies won a skirmish in the Senate on Monday as a bill to protect them from lawsuits for cooperating with the Bush administration’s eavesdropping programs easily overcame a procedural hurdle and passed on a vote of 76 to 10.^[1] A measure to block it, led by Senator Christopher Dodd, fell short as those who wanted the bill to reach the floor got 16 votes more than the 60 needed to advance the bill for consideration.^[2]

In his unsuccessful bid to block the legislation, Senator Dodd urged his colleagues not to immunize the telecommunications industry for cooperating with the National Security Agency’s secret program of eavesdropping without warrants.^[3] Dodd asserted that “[f]or the last six years, our largest telecommunications companies have been spying on their own American customers…..Secretly and without a warrant, they delivered to the federal government the private, domestic communications records of millions of Americans — records this administration has compiled into a data base of enormous scale and scope….I have seen six presidents — six in the White House — and I have never seen a contempt for the rule of law equal to this.”^[4]

What happens next is not immediately clear. A different bill, which would not grant immunity to the companies, was also expected to be introduced by, head of the Senate Judiciary Committee, Senator Patrick J. Leahy; whichever bill emerges from the Senate may have to be reconciled with a House version that does not include immunity.^[5]

The measures are meant to renew the controversial Foreign Intelligence Surveillance Act, which currently expires in February.^[6] We have previously talked about FISA in this blog, here.

But supporters of the administration’s program of surveillance without warrants have described it as necessary to protect Americans from terrorists, and they insist the program strikes a sensible balance between national security and personal liberty.^[7] President Bush has threatened to veto any measure that does not grant immunity to the companies.[8] The House version of the legislation, enacted a month ago, was approved by 227 to 189, which is dozens of votes short of the two-thirds needed to overcome a presidential veto.^[9]

Senator Harry Reid of Nevada, the Democratic majority leader, said he agreed to have both Senate measures considered at the same time because “this process will give senators the opportunity to fully debate the various issues.”^[10]

Federal criminal defense attorney Douglas McNabb has previously blogged about the U.S. government’s warrantless wiretapping, here.

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^[1] David Stout, Telecom Industry Wins a Round on Eavesdropping, New York Times, December 17, 2007, available at http://www.nytimes.com/2007/12/17/washington/17cnd-nsa.html?_r=1&ref=business&oref=slogin (last visited December 18, 2007).
^[2] Id.
^[3] Id.
^[4] Id.
^[5] Id.
^[6] Id.
^[7] Id.
^[8] Id.
^[9] Id.
^[10] Id.