New FISA Law Is Insufficient Protection for Businesses

There were many reasons Congress passed legislation over the weekend that updates the Foreign Intelligence Surveillance Act, not the least of which was a recent court ruling holding that FISA does not cover surveillance of foreigners living abroad whose communications pass through America.

The legislation, which will soon be signed into law, gives the executive branch substantial new authority to track down would-be terrorists. But it may not go far enough to protect American telecommunications companies from pending and new lawsuits that are brought against them for helping the government with intelligence gathering. Many of these suits target well-known companies such as AT&T and Verizon, but smaller companies have been targeted as well and are equally vulnerable.

To its credit, the new legislation, which was introduced by Senator McConnell, addresses the liability of communications companies. In one part, it reads: "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." This is intended to protect communications companies that have complied with governmental agencies by collecting information about potential terrorists and their activities. It is insufficient protection.

The new legislation does not go far enough because, while it addresses liability for telecommunications companies under FISA, it does not look at companies' liabilities under other laws. This is an important point because the American Civil Liberties Union and other groups have many legal cases against various communications companies for cooperating with the federal government on many matters outside FISA.

Many telecommunications companies are now in court for the Kafkaesque charge of assisting the government in an activity no one fully understands, much less can begin to explain. It gives some credence to the cynical aphorism that "no good deed goes unpunished."

The ACLU makes a strong argument that individuals' personal liberties are at risk under a range of programs by which the federal government collects information, including FISA and the Patriot Act. Even if the ACLU is entirely correct on both the wisdom and the legality of certain federal programs, it does not follow that citizens who in good faith respond to a government request should be individually liable for the mistakes of the government.

For example, last month U.S. District Court Judge Vaughn Walker of California refused to dismiss a suit filed by several states against telecom providers. The states seek information on what telecom providers shared with the National Security Agency.

Several states have launched investigations of telecom companies under their public-utilities laws. Missouri, Maine, New Jersey, Connecticut, and Vermont, which are suing on behalf of their citizens whose privacy may have been violated when companies turned over records to the NSA as part of the domestic surveillance program. The ACLU has provided information on its complaints to state public service commissions, which are likely outside the jurisdiction of the new FISA law.

Surely, if the government abuses its powers, it is liable, not individuals who complied with an apparently lawful order. But the ACLU dedicates part of its Web site at aclu.org to attacking businesses that have cooperated, rather than the government itself. Indeed, the ACLU has a page encouraging people to complain specifically to AT&T and Verizon.

If businesses are frightened that they will be taken to court and harassed for complying with apparently lawful government requests, the natural response will be to fight otherwise reasonable government solicitations. Civil disobedience is at times appropriate, but if a federal agency asks a communications company for assistance in tracking Osama bin Laden, most Americans would hope the company would cooperate.

The new FISA law will have two procedures for the government to get information from communications companies: Companies can immediately comply with a government request or, failing that, the government can go to a special FISA court and, after many days of delay, receive a court order.

With the public pillaging of companies that have cooperated with the government, companies will now ask to go through the slow FISA court process for every request. The only beneficiaries of the delay will be a few administrative lawyers and a great many terrorists. The new FISA law should have offered American companies more protection.

A former FCC commissioner, Mr. Furchtgott-Roth is president of Furchtgott-Roth Economic Enterprises. He can be reached at hfr@furchtgott-roth.com.