8/14/2019 EFF: EFF FISA modernization

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FISA Modernization: Lawmakers Should Reject Retroactive Amnesty for Telephone Com-

 pany Violation of Millions of Americans’ Privacy RightsBACKGROUND: Since 1978, ederal civil and criminal laws — administered by ederal judges — haveprotected Americans rom unwarranted spying on their phone calls and other communications. elephonecompanies have been and remain immune or assisting the government in conducting electronic surveillanceauthorized under these statutes. Now, the Administration and the phone companies suddenly argue that asweeping blanket amnesty is needed to shield telephone companies retroactively in pending litigation. Tesecases, based on whistleblower evidence o a wholesale NSA dragnet o millions o Americans’ communications,have been brought by real, live individuals or this egregious violation o their privacy.

ISSUE:Full retroactive telephone company amnesty has no prospective justifcation. Here are the acts:

•  The pending lawsuits pose no threat to national security. For over 25 years, the ederal

courts have — without a single leak — heard all manner o sensitive national security evidence presented behind

closed doors. No changes to current law are necessary to allow these suits to saely proceed.

•  Potential damages in these cases will only be very large if the phone companiesviolated existing privacy laws on a massive scale. I in act that is true, all the more reason

to allow ederal courts to hear the present cases to conclusion. Tat said, statutory provisions capping telephone

company damages in a way that leaves real teeth in current privacy protection laws while ensuring that any dam-

age award is not catastrophic or the carriers is ar preerable to amnesty or lawbreakers.

•  Phone company threats that they will halt cooperation with the intelligence com-munity in the future unless they receive retroactive amnesty are simply illogical.Current law already immunizes the phone companies’ uture assistance based on a directive rom the Attorney

General and the Director o National Intelligence, or a court order. Nothing in pending legislation changes that.

• Federal law has or decades clearly established when telephone companies may assist the government in electronic

surveillance without ear o liability or prosecution. Teir present insistence on sweeping new amnesty only make

sense i they deliberately ignored these longstanding laws and violated the rights o millions o Americans. Qwest

properly reused to cooperate with the government when it was not presented with the legally required authoriza-

tion. Federal courts must be permitted to determine, subject to appropriate secu-

rity procedures, whether the companies in the pending litigation could have andshould have done the same.

Te Electronic Frontier Foundation, lead counsel in the pending class action lawsuit against A&, urges Membersof Congress to oppose any changes to the Foreign Intelligence Surveillance Act that will foreclose judicial review of thewholesale domestic surveillance of millions of ordinary Americans.

ElEctronic FrontiEr FoundationPeg rghs Pmg Feem he Ee Fe www.eff.g 

Ee Fe F www.eff.g cs: Kev Bks f EFF (415) 748-8126 am Esg (202) 215-6884