Senate Bill Gets Telcos Legal Immunity and Lets NSA Wiretap In U.S. Without Court Approval

A bill passed by the Senate Intelligence committee Thursday night would allow the nation's intelligence agencies to spy on American soil without court approval, frees the nation's telecoms from lawsuit alleging they violated the nation's privacy laws by helping with secret spying on Americans, and makes it easier to get court orders targeting Americans for spy wiretaps, according to a copy of the bill provided to THREAT LEVEL. T

That makes the bill much more aligned with the administration-approved temporary measure passed this summer (the Protect America Act), than to the leading proposal in the House (the RESTORE Act).

If passed, the bill (.pdf) allows the Attorney General to force the dismissal of class-action lawsuits against AT&T and Verizon, among others, for their alleged participation in wiretapping and communication record data mining programs.

Notwithstanding any other provision of law a covered civil action shall not lie or gbe maintained in a Federal or State court, and shall be promptly dismessed, if the Attorney General certifies to the court that - a) the assistance alleged to have been provided by the electronic communication service provider was in connection with an intelligence activity involving communications that was authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007 and designed to detect or prevent a terrorist attack[...] and described in a written request or directive from the Attorney General or the head of an element of an intelligence community to the electronic communication service provider indicating that the activity was authorized by the President and determined to be lawful OR the electronic communication service provider did not provide the alleged assistance.

The Attorney General then files a declaration of this with the court, with the ability to restrict the viewing only to the judge. The judge can then review the statement and dismiss the case without indicating whether the provider was involved or not. State entitities, including public utility commissions and state attorneys general, would be barred from filing suit against telecoms, as they have in regards to the post 9/11 spying.

The bill does not give immunity to government officials.

The new spying authorities are quite broad, and track very closely to the Protect America Act passed this summer. Any spying inside the United States directed at people reasonably believed to be outside the United States is defined as NOT "electronic surveillance." The feds can then order any U.S.-based telephone company, ISP, email provider, IM service, telephone switching station, internet exchange hub or message to tailor their networks for broad interception of communications flowing from or to people overseas.

So for instance, Google could be served with a secret directive forcing the company to send a copy of every email sent to or by a person who logs in from an IP block determined to be not assigned to an American.

AT&T could be ordered to forward on all internet packets flowing out of the country or into it.

Skype could be forced to build a back door into its encrypted phone calls and find a way to send the NSA a copy of all calls to and from Skype users on foreign IP addresses.

The companies could try to fight such orders, but must do so in secret to a secret court, and never disclose they got such an order.

But in order to protect Americans, the bill orders that the NSA come up with a way to figure out who in those conversations is an American and redact their names or the content of their speech when they examine it.

Given that the bill defines such a program as not "electronic surveillance," the bill has to do some fancy semantic dancing to protect Americans. To wit:

Information acquired from an acquisition conducted under section 703 (ed note: surveillance that is not surveillance) shall be deemed to be information acquired from an electronic surveillance pursuant to title I for purposes of section 106, except for the purposes of subsection (j) of such section.

In English, that means the surveillance program we are callling not surveillance is surveillance when it comes to the provisions saying you can't keep innocent Americans' emails or share them or use them in court unless certain things happen. But the program isn't electronic surveillance (and thus exempt) when it comes to the requirement that if electronic surveillance is found to be illegal or screwed, we have to tell an American that we listened in.

The bill now moves over to the Senate Judiciary committee.

Photo: MellowBox