[Infowarrior] - JUSTICE Act would roll back telecom wiretap immunity

[Richard Forno]

JUSTICE Act would roll back telecom wiretap immunity
http://arstechnica.com/tech-policy/news/2009/09/justice-act-would-roll-back-telecom-wiretap-immunity.ars

A group of Senate democrats has proposed a new bill called the JUSTICE  
Act which seeks to impose stronger safeguards on the surveillance  
powers granted by the PATRIOT Act. It would also roll back a  
controversial provision of the FISA Amendment Act that granted  
immunity to telecom companies that particip

A group of Senate Democrats led by Russ Feingold (WI) and Dick Durbin  
(IL) have proposed the Judicious Use of Surveillance Tools in Counter- 
terrorism Efforts (JUSTICE) Act, a bill that would introduce stronger  
safeguards and higher standards of judicial oversight for surveillance  
activity. It aims to reform the most abusive characteristics of the  
PATRIOT Act and would also roll back a controversial provision of the  
FISA Amendment Act that granted telecom companies retroactive immunity  
for their participation in the Bush administration's extralegal  
warrantless surveillance program.

The proposal is broadly endorsed by privacy advocates and civil  
liberties groups, including the American Civil Liberties Union and the  
Electronic Frontier Foundation. Senator Feingold says that the goal of  
the act is to ensure that surveillance and intelligence-gathering  
activities are properly empowered while guaranteeing that rights are  
respected and investigative privileges are not misused.

"Every single member of Congress wants to give our law enforcement and  
intelligence officials the tools they need to keep Americans safe,"  
Feingold said in a statement. "The JUSTICE Act permits the government  
to conduct necessary surveillance, but within a framework of  
accountability and oversight. It ensures both that our government has  
the tools to keep us safe, and that the privacy and civil liberties of  
innocent Americans will be protected."

The National Security Letter (NSL) provision of the PATRIOT Act is one  
area in particular where the JUSTICE Act would institute new  
safeguards. PATRIOT Act allows federal law enforcement agents to use  
an NSL, instead of a court order, to obtain private records. Civil  
liberties advocates fear that the lack of appropriate judicial  
oversight applied to NSLs creates a very high risk of abuse. Indeed, a  
Department of Justice audit in 2007 found evidence of serious  
irregularities. Several components of the PATRIOT Act, including a  
highly controversial provision that enforced a "gag order" against NSL  
recipients, were deemed unconstitutional and were later stricken.

The JUSTICE Act mandates use of the "least intrusive means" of  
information collection. It imposes limitations on the process that law  
enforcement agencies use to gain expedited emergency access to  
information. It also establishes new tracking and reporting  
requirements to ensure that NSL usage will receive a higher level of  
Congressional scrutiny.

One of the most significant aspects of the JUSTICE Act is that it will  
remove the retroactive immunity grants that were given to the telecom  
companies that participated in the NSA warrantless surveillance  
program. The companies that cooperated with the surveillance program  
likely violated several laws, including section 222 of the  
Communications Act, which prohibits disclosure of network customer  
information. The immunity grants have prevented the telecommunications  
companies that voluntarily participated in this program from being  
held accountable in court.

If the JUSTICE Act is passed, then litigation against the telecom  
companies can move forward. Such litigation could be instrumental in  
determining the scope of illegal activity that was perpetrated under  
the aegis of the NSA's surveillance program. The previous  
administration fought fiercely against that kind of scrutiny during  
Bush's presidency.

Although President Obama initially supported holding the telecom  
companies accountable, he reversed his position and voted in favor of  
telecom immunity while still in the Senate. It's unclear if Obama will  
be support the JUSTICE Act.