Why Telecom Immunity Matters

I owe Monique an answer to a question she asked a few weeks ago on my view of including in Foreign Intelligence Security Act reform legislation an immunity provision for telecommunications companies who cooperate with executive branch surveillance requests.

To understand why telecom immunity is an important issue, you need to start from one basic fact: real surveillance is not like what happens during an episode of 24. When the National Security Agency or some other spy agency listens in on a foreign telephone call, they don't do it by having Chloe O'Brian clandestinely tap into the worldwide communications network without anyone else knowing. Unlike the fictional CTU, real American intelligence agencies go through the front door; they probably even ask for some technical assistance from the telecom to set things up. That's why a significant part of the substance of the FISA legislation currently being debated by Congress describes circumstances under which telecom companies are required to cooperate with the government's requests for assistance.

Under the threat of privacy lawsuits, however, telecommunications companies are likely only to comply with surveillance requests if they can be given ironclad assurances that the requests do not run afoul of the law. On the surface, this is not a bad thing, but because the House's version of FISA reform treats only communications where both ends are outside of the United States as legitimate targets for foreign intelligence gathering, such assurances, regardless of the location of the target, are impossible to give in the absence of a court order.

Here is the problem, which the Democrats in Congress seem determined to ignore: what happens when a foreign surveillance target, located in a foreign country, unexpectedly makes contact with someone within the United States? Under the bill passed by the House last week, if any suspicion exists at the start of a surveillance operation that a party being monitored might contact someone inside of the US, the agency must to stop listening the moment a cross-border communication occurs, unless a court-order is already in hand. So unless telecommunications companies working with the NSA or some other US intelligence agency are willing to accept promises that cannot possibly be guaranteed -- namely, that foreign citizens under surveillance in foreign countries will never contact the United States -- court orders will be required for any foreign surveillance operations seeking to make use of American telecommunications hubs.

There are at least two ways that Congress could mitigate this problem. One would be to make it clear that as long as one party is outside of the United States, communications involving that party are to be treated under the rules of foreign intelligence gathering, no court order ever necessary. Or Congress could give telecommunication companies immunity in cases where they are complying with requests signed off by the Attorney General, reducing the legal risk they would bear in cooperating with executive branch requests for information. So far, House Democrats have been unwilling to pass either of these provisions, showing less interest in encouraging private institutions to cooperate with the government in fighting terrorism than in injecting the court system as strongly as they can into foreign surveillance operations.

Andrew McCarthy has more details on FISA reform in a Human Events article available here.