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Wiretaps: Telcos Are Off the Hook

U.S. carriers can breathe a little easier today knowing that the wiretapping they helped conduct after September 11, 2001, is almost certainly going to be protected by law.

The U.S. Senate passed legislation today that overhauls the Foreign Intelligence Surveillance Act of 1978. The bill will grant retroactive immunity to carriers that carried out these wiretaps, without warrants, for the federal government.

While the bill's passage was expected, the vote is a sigh of relief for AT&T Inc. (NYSE: T), Verizon Communications Inc. (NYSE: VZ), and Sprint Corp. (NYSE: S), which were facing more than 40 lawsuits totaling billions of dollars in damages for their roles in the wiretaps. Now those lawsuits will be thrown out.

The U.S. Congress had been divided for more than a year on this bill, mainly because of the retroactive immunity clause. Republicans wanted the telcos protected, while Democrats wanted the lawsuits to proceed.

Debate raged on as to whether the telcos were willing participants in an unconstitutional violation of privacy or if they were simply ignorant pawns doing what the law stated they must do. (See Were Telcos Justified in Warrantless Wiretaps?)

Earlier this year, the Senate passed legislation granting retroactive immunity to the telcos, while the House of Representatives countered with its own version that did not.

Eventually though, opposing Democrats caved in and agreed to the retroactive immunity clause. In exchange, Republican legislators and President George W. Bush have agreed to a clause that prohibits future warrant-free wiretaps on Americans traveling overseas and requires a court to evaluate a wiretap's legality before it goes into effect, not after.

The House of Representatives passed this new version of the bill in June, and with the Senate passing it today, President Bush is expected to sign the bill into law.

While we don't know who will be president next year, we do know that he will support telco immunity. Senator Barack Obama had long opposed granting the immunity but changed his position after winning the Democratic nomination; Obama even returned to Washington D.C. today to vote in favor of the legislation. Senator John McCain, the Republican nominee, did not vote, but supports granting the immunity to telcos.

While the book has now closed on the wiretapping issue, there will always remain some suspicion that the carriers bought their legal freedom. For example, Senator Jay Rockefeller, a Democrat from West Virginia who was one of the first to go against party lines in favor of the immunity, reportedly took tens of thousands of dollars in political contributions from AT&T and Verizon. (See Nice Lobby.)

AT&T did not immediately respond to requests for comment on the Senate's vote. A Verizon spokesman simply said, "no comment."

— Raymond McConville, Reporter, Light Reading

nodak 12/5/2012 | 3:37:06 PM
re: Wiretaps: Telcos Are Off the Hook Does anyone have any idea on whether or not the law will pass muster on a 4th amendment lawsuit?
Raymond McConville 12/5/2012 | 3:37:05 PM
re: Wiretaps: Telcos Are Off the Hook I can't imagine it wouldn't. The fourth amendment is pretty broad, as are most of the bill of rights. Plus it was written before phones even existed. It would be up to the interpretation of the Supreme Court, and I think most would agree that the current court as it is made up would side with the President on this one.
nodak 12/5/2012 | 3:36:57 PM
re: Wiretaps: Telcos Are Off the Hook I would not be too certain on the Supreme Court. Bush did ask them to leave the DC gun control law in effect and they did rule against him on the detainees at Guantanamo.

As always, lawyers will benefit the most from this once they can con people in to suing.
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