Bush Wins Warrantless Wiretapping War

Tag : limiting switch


Sticking Point
That stonewalling has been a sticking point in negotiations betweenCongress and Bush, but the president has been immovable, insistingthat the absence of a telco immunity provision would be a dealbreaker for any legislation that might come across his desk.
Bush and his advocates argued vehemently that the bill wasnecessary to monitor terrorist plots. Without immunity, theyargued, telecom companies would be unwilling to participate insimilar programs going forward.
Critics of the legislation -- a group that ranges from privacyadvocates to Constitutional purists -- said that granting suchimmunity would amount to giving the telecoms and the government ablank check. Objections Raised
"The fact that we are immunizing these companies without knowingwhat happened could make it difficult to challenge the legality ofa wiretap in the future," Ross Buntrock, an attorney with Womble Carlyle , told the E-Commerce Times . Buntrock represents competitive telecom providers: providers of VoIP services , Internet service providers, competitive local exchange carriers -- basically, anycompany that is not an incumbent carrier.
If such a company had opened up its switch to law enforcementwithout a subpoena, he observed, "it would have faced severeconsequences."
It is also questionable that known terrorists were the only onescaught in this particular net, Laurence Pulgram, an attorney with Fenwick & West , told the E-Commerce Times .
Pulgram, along with the American Civil Liberties Union and the Electronic Frontier Foundation , represents a group of people who claim their call records wereturned over to the National Security Agency by AT&T (NYSE: T) and Verizon without the production of a warrant. The group includes doctors,defense attorneys and clergy -- that is, people whose call data isoften very sensitive.
Unless a legal challenge overturns it, the new law will effectivelyend their case, Pulgram said. It will allow the attorney general tocertify that the telco was acting under the written authority ofthe Bush administration, and -- presto! -- it will be liabilityfree.
The law's encroachment on judicial review -- that is, Congressgranting the attorney general power to decide what happens to aparticular case -- may open the door to a court challenge. "Judgesare supposed to decide cases, not the attorney general," remarkedPulgram.
The Fourth Amendment may also provide grounds for a challenge."Even if Congress can rewrite the FISA regulations, it cannotrewrite the Constitution to immunize against violations of theFourth Amendment," he added.
Although there will surely be legal wrangling ahead, Pulgram saidthe new law will make his job as plaintiff's attorney in the telcolawsuit much harder.
Still, there is a high likelihood it will be challenged onConstitutional grounds, Peter Vogel, an attorney with Gardere Wynne Sewell , told the E-Commerce Times . "The question of whether this represents an unlawful seizure ofpersonal data is a real one."