Telecom immunity debate may not impact Vermont suit
Toolbox
By Daniel Barlow Vermont Press Bureau - Published: November 17, 2007
If the U.S. Congress gives retroactive immunity to telecommunications companies for allegedly releasing customer phone records to the federal government, it most likely will not affect Vermont's long-running investigation into the matter.
Stephen Wark, director of consumer affairs and public information for the Vermont Public Service Department, said legislation being debated in the U.S. House and Senate probably would only protect the companies from civil lawsuits.
Since a secret government surveillance program was revealed last year, the Public Service Department has been trying to investigate if AT&T and Verizon broke state consumer protection laws by releasing private phone information.
"What we expect is that the immunity legislation as it is now being debated would not stop the state from continuing its investigation," Wark said. "But a lot can change between now and when a final bill might be voted on."
The Vermont Public Service Board recently re-energized the more than one-year-old case, rebuking a slow-moving federal lawsuit against Vermont and other states that sought to squash such investigations on the grounds that sensitive intelligence information could be revealed.
About 40 civil lawsuits have been filed against the companies nationally, accusing them of violating federal and state laws. And that is what immunity legislation in the U.S. Congress is likely aimed at stopping, Wark said.
Vermont's inquiry, which will now extend into 2008, will instead focus on areas the board believes the state has jurisdiction, although the phone companies have argued in motions that even a newly directed probe runs afoul of federal state secrets laws.Wark said that process will be long, but that it is now on schedule.
"We are fully committed in determining if any state laws were violated and if these companies gave access to sensitive customer information," he said Friday.
Rewriting a three-decades-old law and deciding whether the phone companies should be awarded immunity for participating in the once-secret federal surveillance program between suspected terrorists and Americans was the focus on much legislative work in Washington on Thursday.
Late Thursday night, the U.S. House voted 227-189 on the latest revision to the 1978 Federal Intelligence Surveillance Act, which set up a secret court that reviews requests for eavesdropping warrants for the federal intelligence community.
President Bush's surveillance program, which has been active since at least 2001, bypassed that court and a divided Congress made legal that process in August on the last day of its session before its summer break.
The bill passed by the U.S. House Thursday night reinstates the FISA court's role in approving most warrant requests, but does allow some flexibility in that intelligence organizations can apply for retroactive warrants and use so-called umbrella warrants. Those warrants target an organization or large group of people in emergency situations.
U.S. Rep. Peter Welch, Vermont's freshman Democrat, did not support the first FISA bill in August, but joined Democrats in supporting the new bill this week. He said the bill strikes the right balances between protecting civil liberties and ensuring the government has the right tools to protect the country.
"This bill restores the role of the courts in the process," Welch said late Thursday afternoon, several hours before the bill passed on the House floor.
"I don't want George Bush to have unilateral authority to read whatever e-mail he wants."
Welch said Bush defied the U.S. Constitution by collecting and reviewing American's communications, and the new FISA bill retains protections while still allowing flexibility in collecting information.
He also came out hard against accepting any sort of immunity for the telecommunications companies.
"Immunity is unjustified," Welch said. "We don't even know exactly what the telecoms did, but they want to be granted immunity for it?"
Meanwhile, efforts to strip immunity from a FISA rewrite proposed by the Senate Intelligence Committee failed in the Senate Judiciary Committee in a party-line vote Thursday afternoon.
U.S. Sen. Patrick Leahy, the state's senior Democrat and the chairman of that committee, supported an amendment that would have stripped immunity, but through a procedural move the final version of the bill ignored the immunity question altogether and is offered as an amendment to the Intelligence Committee's version.
It's unclear which version of the bill will be finally voted on by lawmakers on the U.S. Senate floor. But in a statement released after the committee vote Thursday, Leahy seemed to rule out supporting any immunity for the companies.
U.S. Sen. Bernard Sanders, an independent freshman senator from Vermont, has vowed to vote against any bill that includes immunity.
"While I appreciate the problems facing the telecommunications companies, the retroactive immunity issue to me is not about fixing blame on the companies but about holding government accountable," Leahy said. "Passing a law to whitewash the Administration's undermining of another law would be a disservice to the American people and to the rule of law."
Allen Gilbert, executive director of the American Civil Liberties Union of Vermont, said the FISA rewrite could be the first major showdown between the Democrat-controlled Congress and the White House, which has vowed to veto the bill if it does not include immunity.
The proposal is better than what is in place now, Gilbert said, but he worries about some provisions in the versions, including the so-called umbrella warrants which allow the government to spy on an entire organization under a single warrant.
"I just don't see how the Democrats can get a bill passed that the president will sign without giving up something that is very important to them," he said.
Contact Daniel Barlow at daniel.barlow@rutlandherald.com.
42