2008 Archive

Constitutional Concerns Linger After Senate OKs Bill with Telecom Immunity

The U.S. Senate has sparked constitutional concerns with a bill that shields telecom companies from liability for helping the government with its antiterrorism surveillance programs. But Berkeley Law professor Jesse Choper characterizes the outcome as predictable and the constitutional impact—for now—as negligible.

By a 69-28 margin, the Senate amended the Foreign Intelligence Surveillance Act (FISA) to grant retroactive immunity to companies that helped the Bush Administration wiretap Americans without court authorization. The new bill effectively dismisses about 40 lawsuits against the telecom industry for violating wiretapping and privacy laws.

"I wasn't surprised by the vote," says Choper, a prominent constitutional law expert. "It's clear that a significant majority of the Senate and a decent number of Democrats, including Barack Obama, were persuaded by the argument that private companies ought not to be made liable under these circumstances."

After 9/11, the White House claimed President Bush had constitutional authority to act outside the courts—allowing the National Security Agency to monitor international communications of Americans with suspected ties to terrorists. While the bill strengthens judicial and congressional oversight of such surveillance, it also authorizes U.S. intelligence agencies to eavesdrop, without court approval, on foreign targets believed to be outside the country.

Spotlight on 4th Amendment

Opponents claim this type of surveillance is illegal under the 4th Amendment's prohibition of unreasonable search and seizure. They point to the White House having side-stepped the FISA court—created in 1978 to stop government abuses of surveillance powers for political purposes that occurred during the Vietnam War and Watergate.

"The 4th Amendment concerns remained largely unresolved in Congress because the issue of the President claiming constitutional power to unilaterally institute this program wasn't addressed," Choper says. "The prevailing argument addressed a narrower point, that terrorism is serious business and private companies can't be held liable for engaging in activity designed to curtail it."

Is the most significant revision of surveillance law in 30 years an example of extending sovereign immunity to corporations who cooperate with the government?

"That's one way to characterize it," says Choper. "There are all kinds of immunity for government officials who violate citizens' constitutional rights, and to get money damages against a private entity for doing that is a tall order. The argument that the telecom companies violated constitutional rights requires that their conduct have a close enough nexus to the government so that it's actually deemed to be performed by the government. I don't know of a comparable case in which an entity like one of these telecom companies has been shown to satisfy that definition."

— By Andrew Cohen