FISA Debate Goes Beyond Partisan Rhetoric

Posted March 10, 2008 at 2:14pm

The current controversy surrounding the Foreign Intelligence Surveillance Act has dominated the news, and rightly so. The renewal of FISA and its most controversial provision, retroactive immunity for the telecommunications companies that cooperated with the government on wireless surveillance activities, will impact every American — and some of the most important industries at the center of our economic growth.

A few U.S. telecommunications companies now face at least 40 lawsuits claiming they broke the law, specifically the Communications Act of 1934, by turning over millions of customer records to the government without warrants. These lawsuits, and pending FISA legislation, likely will decide whether the communications and technology companies with which each citizen deals daily are primarily their confidential partners in communications — or surveillance agents of the government.

The issues involved deserve more than backroom conversations and partisan rhetoric. Few pieces of legislation need sunlight and careful consideration more than this: It involves the civil liberties of millions, the nation’s security and the scope of possible misconduct by some of our largest, most powerful corporations.

The Democratic leadership is trying to pass reasonable, balanced legislation that authorizes the government’s intelligence agencies to appropriately expand their surveillance activities when certain core standards are met. They would allow such expanded surveillance when it is helpful to anti-terrorist activity, but insist that our government has an obligation to do so in a way that also protects the privacy of innocent American citizens.

Instead of working to find pragmatic solutions, most Congressional Republicans are unfortunately following the dogmatic and extreme position of the Bush White House by continuing to misrepresent the issue as a choice between catastrophe versus security. It is not. The issue is simply whether their favored telecommunications friends are held accountable for possible illegality.

Since when does special-interest protection trump national security and civil liberties? Just how many and how terrible must be the secrets being covered up to justify blocking or vetoing a bill that the White House calls essential to protecting our national security? Why do the White House and a few big telecom companies make this issue so important that they apparently will do anything to stop these inquiring lawsuits?

The assertions that companies without retroactive immunity will not cooperate with an administration’s lawful requests are outrageous and false. Companies will be good citizens and cooperate with intelligence agencies as authorized by law to do so. That is why most in the industry want new legislation passed that creates a clear standard.

All agree that the current limited prospective immunity rules should be extended. Thus, if one law mandates a company to cooperate, but in so doing it breaks a different legal obligation, that company should be held harmless for the government’s legal confusion. Those who imply we would withhold cooperation where the standards are reasonably clear and when lawfully required to do so are creating a straw man argument and insulting the entire industry.

It doesn’t take working in the technology industry to appreciate the breadth of the power of surveillance on millions of people on an ongoing basis. The reasons to grant this power may seem appealing now, but such power is rarely given up, and too easily misused. No one knows the extent of the domestic spying program and we may never know. We’re being asked as Americans to trust the government on this one — which might be easier if we had strong checks on the powers they want to institute.

It’s time to rein in the political rhetoric. If it is urgent for a bill to pass, stop playing politics. Leave telecom immunity for separate consideration.

Allowing the law to lapse over protecting major telecom carriers from lawsuits means it is the president who is the one who has chosen to protect the telecom companies instead of the American people.

Ed Black is the CEO of the Computer & Communications Industry Association.