House Should Pass FISA Reform
Next week, the House of Representatives will consider updates to the Foreign Intelligence Surveillance Act. One political distraction to the bill's passage is the so-called retroactive immunity offered to telecommunications companies, such as AT&T and Verizon, that followed legal guidelines in assisting the federal government with intelligence gathering in the past.
It is not obvious why protecting private parties from lawsuits is a major issue in a foreign intelligence bill. Here is the tortured logic: The Fourth Amendment prohibits unreasonable searches by the government. Court orders are usually required and, indeed, much of FISA focuses on court review of government surveillance. The federal government allegedly did not have necessary court orders for all surveillance. Only the federal government, not private parties, can violate the Fourth Amendment. Consequently, some civil liberties groups have logically sued ... the telecommunications companies.
Telecommunications companies are attractive targets for these types of lawsuits. Although they are alleged to have had only a supporting role in the federal surveillance, the telecommunications companies have much of the expertise and information on which the federal government relies.
Moreover, as profit-oriented entities, telecommunications companies see litigation with civil liberties groups as a lose-lose proposition. So when they are put in the hopeless position of being held accountable not for their own shortcomings, but for the mistakes of the federal government, these telecommunications companies often decide to settle the cases out of court. Retroactive immunity is not so much about whether telecommunications companies are liable for having helped the federal government in the past, but about whether they will be dragged kicking and screaming to help in the future. Without retroactive protection, the next time the federal government asks a telecommunications company for assistance, the general counsel's office will politely say: "No. Not today, not tomorrow. Never. The last time we helped you, we suffered miserably. Our shareholders will not permit us to help again." Messrs. Ahmadinejad, Chavez, and their ilk will only laugh at us. Ironically, it is perfectly lawful and fully expected that a telecommunications company such as AT&T or Verizon would identify a packet of information on the Internet as part of a voice message or any other type of content. Telecommunications companies are expected to ensure that all of the packets of information associated with the same voice call arrive at a destination in a timely manner, even if the destination is in North Korea. If a private company examines packet information for its own network management — or perhaps even other private purposes — that is widely considered acceptable. If the same company assists the government with the same information, that is in many eyes unacceptable.
The Internet is a huge galaxy of information flowing in all directions. Stargazers watch for particular types of information, and they detect and decode information, sometimes without the knowledge of either the sender or the receiver. The stargazers are not just our government, or even American telecommunications companies. Some are our friends; many are not.
The challenge Congress faces is to stop terrorists with lawful means that are enforceable and widely respected. If we have laws that discourage private companies from assisting a punctiliously law-abiding administration in the future, we lose. If we have laws that provide both for the protection of individual rights as well as the reasonable intelligence interests of our government, terrorists lose. A refreshing voice of reason on Capitol Hill on this issue is Senator Rockefeller of West Virginia, chairman of the Senate Select Committee on Intelligence. No one's fool, and certainly no business's lap dog, Mr. Rockefeller has had access to classified materials about the current situation that are unavailable to the American public and even to many of his congressional colleagues.
Mr. Rockefeller has structured a reasonable bill on foreign intelligence that will give courage to Americans and trembling fear to our adversaries. His bill provides for retroactive immunity to telecommunications carriers not to insulate their shareholders in the past but to protect America in the future. His Senate colleagues approved his bill. The House should follow suit next week.
A former FCC commissioner, Mr. Furchtgott-Roth is president of Furchtgott-Roth Economic Enterprises. He is organizing a seminar series at the Hudson Institute. He can be reached at hfr@furchtgott-roth.com.
