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House FISA Bill (H.R. 3773): House Passes Version of Controversial Wiretapping Legislation Without Telecom Immunity

Privacy Telecommunications

H.R. 3773 – Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008

Full Text of House Bill
Full Text of Corresponding Senate Bill
CRS Summary of House Bill
GovTrack Summary (including House vote details)

On Friday, March 14, the House of Representatives approved H.R. 3773, the Foreign Intelligence Surveillance Act (“FISA”) of 1978 Amendments Act of 2008. The House bill, which passed 213-193, would set new rules for governmental “eavesdropping” on phone calls and emails within the United States. Originally introduced in October 2007 by Rep. John Conyers (D-MI) and several other House Democrats, the bill aims to resolve issues associated with the wiretapping program the Administration created in the wake of September 11, 2001. The House version of the bill would establish restraints for future government action, as well as the procedures for challenging those actions in court.

Unlike the Senate version of the bill, S. 2248, which the Senate passed in February, the House version does not grant immunity from civil liability to telecommunications companies accused of illegally cooperating with government surveillance.

Some other highlights of the bill:

  • Government must seek approval of the Foreign Intelligence Surveillance Court before conducting surveillance.
  • Intelligence agencies are forbidden from reverse-targeting American citizens through surveillance of foreigners.
  • A “Commission on Warrantless Electronic Surveillance Activities” will be established to investigate government surveillance since September 11, 2001.

The Associated Press and OMB Watch report on the passage of the House bill.
Rep. Jerrold Nadler (D-NY) explained more of the process behind the House bill's passage.
Hugh D'Andrade of the Electronic Frontier Foundation, in response to the debate on the FISA amendments, excerpted several opinion pieces on “how surveillance hurts free speech.”

Critics of the wiretapping program have objected to several telecommunications companies’ past cooperation with warrantless government wiretaps. Proponents have stated that the cooperation of telecoms has been instrumental in investigating suspected terrorists and safeguarding national security. A combined lawsuit alleging violations of wiretapping and privacy laws, is currently pending before a California federal court.

Considerable debate has developed over whether the telecoms should face liability for their role in the wiretaps. The difference is reflected in the sharp differences between the House and Senate versions of the Act. The Senate version, approved on February 12, states:

“[n]otwithstanding any other provision of law, no civil action may lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be promptly dismissed…”

provided the Attorney General certifies that the telecom provided the assistance pursuant to government assurance that it was lawful. The House version contains no such provision.

President Bush has threatened to veto the bill if it does not grant immunity. The White House takes the position that failure to grant immunity would compromise national security because telecoms will be reluctant to cooperate with investigators in the future if they may be subject to liability for doing so. Opponents of the immunity clause contend that the telecoms should have to defend their conduct in court, and that dismissal of suits against them should be left to judges, not Congress. They also note that even if telecoms refused to aid instigators, the House version would allow the government to compel cooperation.

Further debate of this issue and the Act as a whole is certain, as the Senate and House must now reconcile their versions before sending a final bill to the President.