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Shehnaz Bhujwala
Shehnaz Bhujwala
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Wiretapping Act Lapses As House Democrats Continue Debate Against Retroactive Immunity for Compliant Telecommunications Companies

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The recent lapse in a temporary US wiretapping law has brought much uncertainty to private telecommunications companies and, according to the White House, threatens to disrupt future surveillance operations. Fueling this uncertainty is the raging debate in Congress over whether phone providers that helped in the National Security Agency’s post 9/11 program of wiretapping without warrants should be given retroactive immunity to shield them from some 40 pending class-action lawsuits over their compliance with the program.

House Democratic leaders have enabled the “Protect America Act of 2007″ (PAA), passed into law last year as part of the Federal Intelligence Surveillance Act (FISA), to lapse, by refusing to approve a White House-backed bill already passed by the Senate that extends the PAA and includes retroactive immunity to private telecom companies, such as Verizon, BellSouth and AT&T, that aided the Bush administration’s terrorist surveillance program by providing private data without warrants after the terrorist attacks of Sept. 11, 2001.

The NY Timesreports that, in the wake of the surveillance law’s expiration, most phone providers had continued to carry out valid wiretapping orders, but that at least one company had expressed reluctance over particular operations.

FISA requires a warrant be obtained by applying to a secret intelligence court before a wiretap can be placed on a line used by a foreign agent. PAA expanded that power to allow the National Security Agency to monitor calls originating in foreign countries that pass through U.S. communication nodes without having to obtain a warrant. It also allowed, in certain circumstances, the NSA to listen in on calls involving U.S. citizens and foreign targets without a warrant. The act also contained the now-debated provision granting civil immunity to telecom companies going forward. Congress placed a six-month expiration date on the act so that its civil liberties ramifications could be debated more thoroughly.

According to the ACLU, the Protect America Act of 2007 allows for “massive, untargeted collection of international communications without court order or meaningful oversight by either Congress or the courts and contains virtually no protections for the U.S. end of the phone call or email, leaving decisions about the collection, mining and use of Americans’ private communications up to this administration.”