Washington, D.C. - Tomorrow the Senate Judiciary Committee is scheduled to take up a bill introduced by Senator Arlen Specter (R-PA) that would substitute the government for the phone companies in all current litigation. The Electronic Frontier Foundation (EFF), co-lead counsel in the nearly 40 pending lawsuits against the major telephone carriers, strongly believes that Congress need not and should not grant amnesty for providing the National Security Agency (NSA) with the full content of billions of their customers' emails, text messages and Internet-carried phone calls.

"While EFF appreciates the attempt by Senator Specter to craft a compromise to save the litigation, the bill contains serious flaws that undermine the goal of allowing the courts to decide whether the carriers and the president broke the law when they engaged in over five years of warrantless surveillance of millions of ordinary Americans," said EFF Legal Director Cindy Cohn. "Given the gravity and unprecedented complexities of the issues raised by the carriers' demand for amnesty, Congress should not be rushed into action by an arbitrary deadline and should instead take the time to carefully consider Senator Specter's proposal as well as others."

Prior to the Thanksgiving break, Senator Specter had the right idea when he said: "I don't think Congress can stand by, and in the face of what has happened, give carte blanche, a free ticket, grant retroactive immunity to suggest to future administrations that they can ignore separation of powers and they can ignore Congressional oversight and just run roughshod over the entire process without being held accountable. The better practice is to allow judicial proceedings to take their course and let the courts make their own determinations."

"The Judiciary Committee's instincts before Thanksgiving to separate out the substantive changes to FISA -- which are tied to the sunset of the Protect America Act in February, 2008 -- from the question of amnesty were correct," said Cohn. "Before tens of millions of Americans and their legitimate claims are kicked out of court, Congress owes the American people a transparent process -- not a few weeks of pressured consideration and a single public hearing by the Committee charged with protecting the Bill of Rights."

The "Foreign Intelligence Surveillance Substitution Act of 2007," introduced on December 3 by Sen. Specter, addresses one important problem regarding damages if the plaintiffs' case is proven. Regrettably, however, it falls short. Specifically, the new Specter substitution bill:

* Would require the plaintiffs to change their legal claims from those against telecoms to claims that can only be made against the government, paradoxically making the lawsuits more likely to trigger national security concerns even as they slant the playing field sharply in favor of the government

* Could empower the government to kill the litigation by asserting legal privileges that the government alone possesses

* Would dramatically and prejudicially limit the plaintiffs' current rights to discovery and other key procedural rights critical to getting at the facts about the telecoms' ongoing violations of multiple Congressional privacy statutes, including the Foreign Intelligence Surveillance Act (FISA). These statutes specifically require telecoms to say "No" to an overreaching Executive Branch when it demands warrantless and illegal access to customers' private calls and call records.

"Although regrettably we cannot support Sen. Specter's new bill, we applaud his serious efforts and his fundamental approach to this issue," said Cohn. "We couldn't agree more with his bottom line on telecom amnesty and hope that every senator will take this to heart as FISA reform makes its way to the Senate floor this year or next."

For more on the telecom lawsuits:


Kevin Bankston
Staff Attorney
Electronic Frontier Foundation

Cindy Cohn
Legal Director
Electronic Frontier Foundation

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