Washington, D.C. - Despite the strong leadership of senators like Chris Dodd and Russ Feingold, the Senate failed today to block provisions of a pending surveillance bill that would grant immunity to phone companies that assisted the government in illegal electronic surveillance.

The Dodd-Feingold amendment to remove immunity from the FISA Amendments Act (FAA) failed in a 31 to 67 vote, and final Senate passage of the FAA is expected later today.

"Immunity for telecom giants that secretly assisted in the NSA's warrantless surveillance undermines the rule of law and the privacy of every American," said EFF Senior Staff Attorney Kevin Bankston. "Congress should let the courts do their job instead of helping the administration and the phone companies avoid accountability for a half decade of illegal domestic spying."

After the Senate passes the FAA, it will need to negotiate with the House over differences between the FAA and the RESTORE Act, the House's own surveillance bill passed in November. The RESTORE Act, although far from perfect, provides for more congressional and judicial oversight of the Executive Branch's domestic spying than the FAA, and does not include immunity for the telephone companies. President Bush has threatened to veto any surveillance legislation that does not contain immunity, even as the Protect America Act's changes to surveillance law -- which the president has argued are critical to saving American lives -- are set to expire on February 15th.

"It's time for Speaker Pelosi to draw a line the sand, and make clear to the president that this House of Representatives is never going to pass any bill that includes immunity for lawbreaking telecoms," said Bankston. "It's time for the president to show that he cares more about American lives than about the phone companies' bottom lines by actually working toward a bipartisan agreement on how to update surveillance law for the 21st century."

Senator Feinstein also offered an amendment to the Senate bill that would have provided immunity to phone companies if the Foreign Intelligence Surveillance Court determined that they had a good faith, reasonable belief that the NSA program was legal. That amendment did not pass, but received enough votes that it might be considered by the House as a potential compromise on the immunity issue.

"Attempts by senators like Ms. Feinstein to find a reasonable compromise on the immunity question are much appreciated, but transferring all of the litigation to the secretive and conservative FISA court is unnecessary, inefficient and unwise," said Bankston. "The regular federal courts are fully capable of handling these cases fairly and securely."

EFF represents the plaintiffs in Hepting v. AT&T, a class-action lawsuit brought by AT&T customers accusing the telecommunications company of violating their rights by illegally assisting the government in widespread domestic surveillance. The Hepting case is just one of many suits aimed at holding telecoms responsible for knowingly violating federal privacy laws with warrantless wiretapping and the illegal transfer of vast amounts of personal data to the government.


Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation

Kevin Bankston
Senior Staff Attorney
Electronic Frontier Foundation

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