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from: Light Reading

Were Telcos Justified in Warrantless Wiretaps?
MARCH 14, 2008

Democrats and Republicans in Congress are divided over a critical telecom issue: wiretapping. Are the U.S.'s largest phone companies liable for assisting the federal government in carrying out warrantless wiretaps?

The answer may not be one that privacy advocates want to hear. Even if the Bush Administration acted outside the authority of the Constitution in authorizing wiretaps since September 11, 2001, our sources say the phone companies can defend their actions.

"I'm quite confident based on what I've read that both these companies had an opinion from the Attorney General that the authority was lawful," says one lawyer with knowledge of the situation (and no telecom clients). "By statute, they have the right to rely on a written certification. What I'm confused about is why the trial courts haven't given them the immunity that they're entitled to under the statute."

The point: Telcos don't make a morality call when it comes to wiretap requests. If the Executive Branch gives a written order to assist with a wiretap, the only question the telco asks is if the document is valid.

The nation's phone companies have been hit with over 40 different lawsuits over their role facilitating warrantless wiretaps. Republicans want these lawsuits thrown out with the telcos given retroactive immunity, but the legislation proposed by House Democrats this week suggests that the suits should be allowed to move forward in the courts.

The issue at hand is the recently expired Protect America Act passed in 2007. The law expanded the powers granted in the 1978 Foreign Intelligence Surveillance Act (FISA) that regulates wiretaps. That 1978 law contains a provision that allows the Executive Branch to order a wiretap without a warrant as long as it is reasonably believed to not involve U.S. citizens. In other words it could be for the collection of foreign surveillance information only. [Ed. note: Exciting stuff, eh?]

In 2005, The New York Times revealed that since the September 11, 2001, terrorist attacks, President George W. Bush had authorized the wiretapping of U.S. citizens without a court order or warrant. He did this with the full cooperation of U.S. phone companies including AT&T Inc. (NYSE: T - message board) and Verizon Communications Inc. (NYSE: VZ - message board).

Telcos are reportedly getting nervous and more and more reluctant to cooperate with wiretaps out of fear of getting in more legal trouble. But if the law protects them from liability, why are they getting sued?

Experts we spoke to, including a lawyer and a former FBI official, say this is more of a political issue than a legal issue and that the privacy groups taking the telcos to court are merely using them as a way to swipe at the Attorney General and the President. "The real issue is that the privacy groups can't get to the Attorney General or President," says our legal expert. "They've made it clear they're trying to get through the telcos to find out what the federal government is doing with the information."

If the telcos are immune from prosecution under the original wiretapping laws, then why are Republicans and Democrats fighting over new legislation to protect them if they are in fact already protected?

"The Protect America Act was put into statute to endorse some of the procedures that the President was already doing. It's the theory that it's more powerful when two branches are acting together," says our former FBI official source.

The government is also fearing that if the courts put enough pressure on the telcos, then they won't cooperate with them in future wiretapping. "The Executive Branch is trying to assure them that they'll stand behind them in the future," our ex-FBI man says. "Frankly, if you don’t get the telephone companies' cooperation, then you don't engage in wiretapping."

— Raymond McConville, Reporter, Light Reading