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Surveillance Law Could Hold New Risks for Telecom Firms
By Evan Perez
The Wall Street Journal
Saturday, October 20, 2007

WASHINGTON -- Legislation aimed at updating a law on government-surveillance activities would give telecommunications companies legal immunity for aiding a warrantless wiretapping program after the Sept. 11 terrorist attacks -- but leave them vulnerable when it came to any aid they offered previously.

The exception may be significant in light of suggestions by Joseph Nacchio, former chief executive of Qwest Communications International Inc., that the government approached telecom providers for help in a contentious surveillance program run by the National Security Agency before Sept. 11, 2001.

Mr. Nacchio was convicted this spring of insider trading and is free pending his appeal.

In recently unsealed court documents in his insider-trading case, he said he declined to cooperate with "improper government requests" from the NSA in February 2001.  He has said in the past that he refused to comply with an NSA request to hand over private phone records of Qwest customers.

His comments appear to be in conflict with the administration's assertion that President Bush authorized the NSA program, known as the Terrorist Surveillance Program, after Sept. 11.

Several telecom providers, including AT&T Inc. and Verizon Communications Inc., are fighting lawsuits alleging that they violated privacy laws by providing customer information to the government without court warrants.

The bill is part of a fragile deal reached by Democrats and Republicans on the Senate Intelligence Committee, and believed to satisfy White House demands.  It would grant the telecom providers legal immunity for assistance they rendered to the NSA program, which operated without warrants from the court that oversees surveillance.

Sen. John D. Rockefeller, the West Virginia Democrat who is chairman of the Senate Intelligence Committee, said, "Private companies who received legal assurances from the highest levels of government should not be dragged through the courts for their help with national security."

Under pressure from the courts and Congress, the White House earlier this year subjected the NSA program to the jurisdiction of the court that administers the law that oversees the government's wiretapping activities, known as the Foreign Intelligence Surveillance Act, or FISA.

Telecom providers publicly have remained quiet in the fight over immunity, but have argued that they traditionally have enjoyed legal protection when responding to government orders to help on such surveillance programs.

The administration has been pushing for a permanent update of FISA, which was enacted in 1978.  A temporary measure in August afforded the president some expanded surveillance powers, but prompted an outcry from liberal and civil-liberties groups.  Democratic leaders promised to revisit aspects of the measure that expanded the president's power to order surveillance with limited court supervision.

The new bill, which was approved by the Senate Intelligence Committee, would increase court oversight of the procedures used to conduct the surveillance.  It would be effective for six years.

Some Senate and House Democrats criticized the Senate Intelligence legislation over the immunity clause.  The bill faces review by the Senate Judiciary Committee, where some lawmakers are skeptical of telecom immunity.  The House is expected to take up its own FISA bill that doesn't include the provision.

A White House spokesman said the Senate bill "has a lot of good components."  He said the administration is still studying the legislation and that it hopes to change a provision that requires court oversight for surveillance that targets Americans overseas.

Write to Evan Perez at evan.perez@wsj.com

http://online.wsj.com/article/SB119284627561865807.html