Intellectual Property Law

Democrats continued their defiance of President Bush Friday over his secret wiretapping program, passing a spying bill that calls for a commission to investigate the program, and refusing to give amnesty to telecoms that collaborated with the warrantless surveillance.

House Democratic leaders secured passage of the spying bill known as the FISA Amendments Act by a vote of 213 to 197, four weeks after a similar measure was defeated by a coalition of Republicans and conservative Democrats. That defeat led to the expiration of a temporary spying measure, setting off a week-long Republican effort to scare the American people with phantoms of lost wiretaps.

Republicans were championing a Senate bill that includes amnesty for telecoms and gives the nation's spies wide powers to wiretap using facilities inside the United States with little court oversight.

Instead of caving to that rhetoric, the House Democrats doubled down on their original legislation, by including a call for a commission, armed with subpoena power, that would investigate the secret spying. The bill also allows telecoms to defend themselves in court by showing secret documents to federal judge. The Bush administration had blocked them from using classified information in their own defense.

The Electronic Frontier Foundation which brought the leading suit against the nation's telecoms applauded the House's moxie.

"Amnesty proponents have been claiming on the Hill for months that phone companies like AT&T had a good faith belief that the NSA program was legal," EFF senior staff attorney Kevin Bankston said. "Under this bill, the companies could do what they should have been able to do all along: tell that story to a judge."

The White House had no such kind words, saying the bill was "partisan" and would be "dead on arrival" in the Senate.

"The House of Representatives took a significant step backward in defending our country against terrorism and passed a partisan bill that will please class-action trial lawyers at the expense of our national security," White House Deputy Press Secretary Tony Fratto said in a statement. 

Now the House and Senate bills will need to be reconciled, and sent to the president, which won't happen for weeks due to the pending Easter recess.

President Bush has repeatedly claimed that there's a urgent national security need for new spying legislation. But he also says he'll will veto any surveillance bill that does not grant retroactive immunity to the companies that turned over phone records and access to internet cable fibers to the government.

Bush argues the participating companies were patriots, and that they would stop complying with lawful court orders in the future if not freed from the lawsuits accusing them of conducting illegal surveillance for Bush.

But it will likely be politically difficult to veto a bill containing new spying powers Bush himself says are vital to American's security, simply because a couple of deep-pocketed corporations are facing lawsuits for violating federal privacy laws.

The bill, H.R. 3773, is not immediately available on THOMAS website, but when posted it will be here. A draft of the bill is available here (.pdf).

See Also:

• House Debates, Holds Rare Secret Session
• Republicans Walk Out As Democrats Confront Bush Over Spying Deadline
• Deceptive Republican Attack Ad Slams Clinton, Obama for Slowing Domestic Spying
• Democratic Lawmaker Pushing Immunity Is Newly Flush With Telco Cash