©1974 Elsevier RECENT LEGISLATION E L E C T R O N I C SURVEILLANCE — C O N G R E S S G R A N T S T E L E - COMMUNICATIONS C O M P A N I E S R E T R O A C T I V E I M M U N I T Y E R O M C I V I L SUITS E O R COMPLYING W I T H N S A T E R R O R I S T SURVEIL- L A N C E PROGRAM. — FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436. In December 2005, the New York Times reported that President Bush had secretly authorized the National Security Agency (NSA) to eavesdrop without a warrant on people in the United States — includ- ing American citizens — for evidence of terrorist activity.^ As part of the "terrorist surveillance program"^ (TSP), the executive branch had "provided written requests or directives to U.S. electronic communica- tion service providers to obtain their assistance with communications intelligence activities that had been authorized by the President. "̂ Af- ter this information became public, over forty lawsuits were filed against a number of telecommunications companies for their alleged role in assisting the TSP; collectively, "these suits s[ought] hundreds of billions of dollars in damages."'* The Bush Administration urged Con- gress to provide retroactive immunity for these companies;^ civil liber- ties advocates and other groups opposed the idea.*' On July 10, 2008, Congress passed the FISA Amendments Act of 2008,' which provides blanket retroactive* immunity to telecommuni- ' James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16, 2005, at A i . 2 John Diamond & David Jackson, White House on Offense in NSA Debate, USA TODAY, Jan. 24, 2006, at ioA. 3 S. R E P . N O . 110-209, at 9 (2007). '* Id. at 7. Normally, electronic communication service providers may only provide assistance in intelligence gathering activities if they are presented with either a court order or a written certi- fication "that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required." i8 U.S.C. § 25ii{2)(a)(ii) (2006). 5 See, e.g.. Press Release, John M. McConnell, Dir. of Nat'l Intelligence, Modernization of the Foreign Intelligence Surveillance Act (FISA) (Aug. 2, 2007), available at http://www.dni.gov/ press_releases/20070802_release.pdf ("[T]hose who assist the Government in protecting us from harm must be protected from liability."). * See, e.g.. Letter from Caroline Fredrickson, Dir., Wash. Legislative Office, ACLU, & Mi- chelle Richardson, Legislative Consultant, to the Senate (Feb. 4, 2008), http://www.aclu.org/ safefree/general/339O9leg200802O4.html [hereinafter Fredrickson & Richardson] (urging Senators to "vote ' n o ' on final passage to any spying bill t h a t . . . grants retroactive immunity to companies who broke the law by facilitating illegal spying"); Letter from MoveOn.org Political Action Team to MoveOn Members (June 21, 2008), http://pol.moveon.org/immunity/o8o621obama.html (urging.

1. ©1974 Elsevier
RECENT LEGISLATION
E L E C T R O N I C SURVEILLANCE — C O N G R E S S G
R A N T S T E L E -
COMMUNICATIONS C O M P A N I E S R E T R O A C T I V
E I M M U N I T Y E R O M
C I V I L SUITS E O R COMPLYING W I T H N S A T E R R
O R I S T SURVEIL-
L A N C E PROGRAM. — FISA Amendments Act of 2008, Pub.
L. No.
110-261, 122 Stat. 2436.
In December 2005, the New York Times reported that President
Bush had secretly authorized the National Security Agency

2. (NSA) to
eavesdrop without a warrant on people in the United States —
includ-
ing American citizens — for evidence of terrorist activity.^ As
part of
the "terrorist surveillance program"^ (TSP), the executive
branch had
"provided written requests or directives to U.S. electronic
communica-
tion service providers to obtain their assistance with
communications
intelligence activities that had been authorized by the President.
"̂ Af-
ter this information became public, over forty lawsuits were
filed
against a number of telecommunications companies for their
alleged
role in assisting the TSP; collectively, "these suits s[ought]
hundreds of
billions of dollars in damages."'* The Bush Administration
urged Con-
gress to provide retroactive immunity for these companies;^
civil liber-
ties advocates and other groups opposed the idea.*'
On July 10, 2008, Congress passed the FISA Amendments Act
of
2008,' which provides blanket retroactive* immunity to
telecommuni-
' James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers
Without Courts, N.Y. TIMES,
Dec. 16, 2005, at A i .
2 John Diamond & David Jackson, White House on Offense in
NSA Debate, USA TODAY,

3. Jan. 24, 2006, at ioA.
3 S. R E P . N O . 110-209, at 9 (2007).
'* Id. at 7. Normally, electronic communication service
providers may only provide assistance
in intelligence gathering activities if they are presented with
either a court order or a written certi-
fication "that no warrant or court order is required by law, that
all statutory requirements have
been met, and that the specified assistance is required." i8
U.S.C. § 25ii{2)(a)(ii) (2006).
5 See, e.g.. Press Release, John M. McConnell, Dir. of Nat'l
Intelligence, Modernization of the
Foreign Intelligence Surveillance Act (FISA) (Aug. 2, 2007),
available at http://www.dni.gov/
press_releases/20070802_release.pdf ("[T]hose who assist the
Government in protecting us from
harm must be protected from liability.").
* See, e.g.. Letter from Caroline Fredrickson, Dir., Wash.
Legislative Office, ACLU, & Mi-
chelle Richardson, Legislative Consultant, to the Senate (Feb. 4,
2008), http://www.aclu.org/
safefree/general/339O9leg200802O4.html [hereinafter
Fredrickson & Richardson] (urging Senators
to "vote ' n o ' on final passage to any spying bill t h a t . . .
grants retroactive immunity to companies
who broke the law by facilitating illegal spying"); Letter from
MoveOn.org Political Action Team
to MoveOn Members (June 21, 2008),
http://pol.moveon.org/immunity/o8o621obama.html (urging
members to call Senator Barack Obama to "[a]sk him to block
any compromise that includes im-
munity for phone companies that helped Bush break the law").

4. ' Pub. L. No. 110-261, 122 Stat. 2436 (to be codified in
scattered sections of 50 U.S.C).
* FISA already provided for prospective civil immunity for
private parties that assist with
electronic surveillance, so long as they do it under the auspices
of the statutory framework.
I 2 7 1
1 2 7 2 HARVARD LAW REVIEW [Vol. 122:1271
cations companies that assisted the TSP.̂ This provision allows
the
Attorney General to immunize these private parties from suit by
certi-
fying that the President requested their assistance and assured
them
that their actions were legal.*° The provision undermines both
the
statutory scheme of the Foreign Intelligence Surveillance Act of
1978"
(FISA) and Congress's role in striking the proper balance
between na-
tional security and civil liberties. Although proponents argued
that
blanket immunity was necessary to protect telecommunications
com-
panies from unfair penalties and to encourage their compliance
in the
future,12 an amendment proposed by Senator Arlen Specter'^
would
have a(idressed these concerns while reducing some of the

5. problems
associated with the blanket immunity provision. Congress
should
have passed Senator Specter's amendment rather than the
blanket
immunity provision that it ultimately enacted.'"*
The first version of the bill, entitled the RESTORE Act of
2007,'̂
was introduced in the House by Representative John Conyers on
Oc-
tober 9, 2007.'̂ This bill did not provide for any retroactive
immu-
nity." After extensive debate, the House passed the bill on
November
15.̂ 8 Meanwhile, on October 26, the Senate Select Committee
on In-
telligence reported an original bill entitled the FISA
Amendments Act
of 2007,'' which contained a provision for retroactive immunity
simi-
lar to the provision that was ultimately enacted.2° The
Intelligence
See 50 U.S.C. § i8o5(i) (2000) ("No cause of action shall lie in
any c o u r t a g a i n s t
a n y . . . person . . . t h a t furnishes any information, facilities,
or technical assistance in a c c o r d a n c e
with a court order or request for emergency assistance u n d e r
this c h a p t e r for electronic
surveillance . . . .").
5 See F I S A A m e n d m e n t s Act of 2008 § 201, 122 Stat. a
t 2468-70 (adding § 802 to FISA).
10 See id. § 201, 122 Stat. a t 2468-69 (adding § 802(a) to
FISA).

6. " P u b . L. N o . 95-511, 92 Stat. 1783 (codified as a m e n d e
d in scattered sections of 50 U . S . C ) .
'2 See, e.g.. Letter from Michael B. Mukasey, A t t ' y Gen., & J
. M . McConnell, Dir. of N a t ' l I n -
telligence, to N a n c y Pelosi, Speaker, U.S. H o u s e of
Representatives (June 19, 2008) [hereinafter
M u k a s e y & McConnell], available at
http://www.lifeandliberty.gov/d0cs/ag-dni-fisa-letter061908
pdf.
'^ See 154 C O N G . R E C . S712 (daily ed. F e b . 6, 2008)
(statement of Sen. Specter).
'"* Senator Specter's a m e n d m e n t w a s not the only
proposed c o m p r o m i s e . For example. Sena-
tor D i a n n e Feinstein proposed providing i m m u n i t y for
telecommunications c o m p a n i e s only after
a finding by the F I S A court t h a t a c o m p a n y received a
w r i t t e n directive from the A d m i n i s t r a t i o n
certifying t h a t compliance w a s lawful a n d t h a t the c o m
p a n y h a d held a n "objectively reasonable
belief u n d e r the circumstances t h a t compliance with the
written request or directive w a s lawful."
Id. a t S707. T h e s e compromises sought to provide protection
for c o m p a n i e s t h a t reasonably be-
lieved t h a t they were complying with the law, w i t h o u t
effectively authorizing the President to use
private parties to c i r c u m v e n t t h e law.
'5 H.R. 3773, I i o t h Cong. (2007).
'6 Id.
1' 153 C O N G . R E C . H I I , 6 6 3 (daily ed. Oct. 17, 2007)
(statement of R e p . Conyers).
1* Id. a t H i 4 , o 6 2 (daily ed. Nov. 15, 2007). T h e bill
passed by a vote of 227 to 189. Id.

7. 19 S. 2248, I i o t h Cong, (as reported by S. C o m m . on
Intelligence, Oct. 26, 2007).
20 See id. tit. U.
2OO9] RECENT LEGISLATION 1 2 7 3
Committee report stated that the bill extended retroactive
immunity to
telecommunications companies because "they acted in good
faith and
should be entitled to protection from civil suit,"^! On November
i6,
the Senate Committee on the Judiciary reported a different
version of
the bill,22 which "d[id] not include . . . blanket retroactive
immunity."^^
However, the Senate voted to table the Judiciary Committee
bilV'»
leaving the Intelligence Committee bill as the sole version
under con-
sideration in the Senate.
Senator Specter subsequently proposed an amendment that
would
"substitute the U.S. Government as a party defendant for the
tele-
phone companies," thereby shielding them from liability while
still al-
lowing courts to rule on the legality of the TSP and the
constitutional
questions raised by the President's assertions of executive
authority.^^
Government substitution would be dependent upon a finding by
the

8. FISA court that the telecommunications companies acted "in
good
faith."26 The Senate rejected this amendment by a vote of sixty-
eight
to thirty." Ultimately, the Senate passed the bill and sent it back
to
the House with the blanket immunity provision intact.^»
On June 19, 2008, Representative Silvestre Reyes introduced
the
FISA Amendments Act of 2008̂ 9 in the House.̂ o This bill was
sub-
stantially the same as the version passed by the Senate.^' On
June 20,
the House voted to pass the bill.̂ ^ The Senate subsequently
consid-
ered the House bill and rejected three more amendments that
would
have altered or eliminated the retroactive immunity provision.̂ ^
On
July 9, the Senate passed the House bill by a vote of sixty-nine
to
twenty-eight.34 The President signed the bill into law the next
day.̂ ^
The final version of the immunity provision states that courts
should dismiss any suit against an electronic service provider
alleged
21 S. REP. No. 110-209, at 10(2007).
22 153 C O N G . R E C . D 1 5 3 7 ( d a i l y e d . N o v . 15,
2007). T h e J u d i c i a r y C o m m i t t e e offered " a n
a m e n d m e n t in t h e n a t u r e of a s u b s t i t u t e . " Id.
23 S. REP. N o . 110-258, a t 4 (2008).

9. 24 154 C O N G . R E C . S 2 5 5 - S 6 (daily ed. J a n . 24,
2008). S e n a t o r K i t B o n d m o v e d to t a b l e t h e
a m e n d m e n t ; t h i s m o t i o n p a s s e d by a v o t e of 60
to 36. Id.
25 Id. a t S712 (daily ed. F e b . 6 , 2 0 0 8 ) ( s t a t e m e n t of
Sen. Specter).
26 Id. a t S713 ( s t a t e m e n t of Sen. W h i t e h o u s e ) .
2 ' Id. a t S889 (daily ed. F e b . 12, 2008).
28 Id. a t S904. T h e S e n a t e p a s s e d S. 2248 by a v o t e
of 68 to 29. Id.
29 H . R . 6304, i i o t h C o n g . (2008).
30 154 C O N G . R E C . H 5 7 2 8 (daily ed. J u n e 19, 2008).
3> Compare H . R . 6304, with H . R . 3 7 7 3 , i i o t h C o n g .
(2008) (as p a s s e d by t h e S e n a t e , F e b . 12,
2008).
32 154 C O N G . R E C . H S 7 7 4 ( d a i l y e d . J u n e 20,
2008). T h e bill p a s s e d b y a v o t e of 293 to 129.
Id.
33 Id. a t S 6 4 6 9 - 7 0 (daily ed. J u l y 9, 2008).
3't Id. a t S 6 4 7 6 .
35 Id. a t D 8 7 6 ( d a i l y e d . J u l y 1 1 , 2008).

10. 1274 HARVARD LAW REVIEW [Vol. 122:1271
to have provided assistance "in connection with an intelligence
activity
involving communications that was . . . designed to detect or
prevent a
terrorist attack . . . against the United States''̂ ^ jf ¿he Attorney
General
certifies that one of two conditions is met. Suits should be
dismissed if
the Attorney General certifies either that the company was
acting pur-
suant to a "written request or directive" from the government
indicat-
ing that such activity was "(i) authorized by the President; and
(ii) de-
termined to be lawful,"37 or else that the company "did not
provide the
alleged assistance."^» The Act provides for a "substantial
evidence"
standard for judicial review of the Attorney General's
certifications.^'
Additionally, the Act provides that courts may limit public
disclosure
of any certification or supplemental materials that would prove
harm-
ful to national security.''°
The blanket immunity provision retroactively validates
presidential
directives to private parties that ordered them to conduct
potentially
illegal actions.-*' This result is problematic for several reasons.

11. First,
it undermines the statutory framework that Congress originally
estab-
lished in FISA. Second, it undermines the ability of Congress to
play a
meaningful role in determining the proper procedures for
gathering in-
telligence, as it weakens the requirement that the
Administration get
statutory approval before fundamentally changing surveillance
policy.
Finally, it greatly reduces the chances that a court will be able
to re-
view the legality of the TSP and the constitutionality of the
President's
assertions of executive authority. Proponents of the blanket
immunity
provision argued that it was necessary for a number of reasons,
includ-
ing fairness and national security.̂ ^ However, the amendment
pro-
36 FISA Amendments Act of 2008 § 201, 122 Stat. at 2468-69
(adding § 8o2(a)(4)(A) to FISA).
" Id. § 201, 122 Stat. at 2469 (adding § 8o2(a)(4XB) to FISA).
38 Id. (adding § 8o2(a)(5) to FISA).
39 Id. (adding § 8o2(b)(i) to FISA).
••O Id. (adding § 802 (c) to FISA).
"• T h e question of whether the T S P was in fact legally
justified is still open to debate, as the
Supreme Court has not ruled directly on this issue. T h e
Administration's legal justifications are
at the very least of questionable merit. See Curtis Bradley et al.,
On NSA Spying: A Letter to
Congress, N.Y. REV. BOOKS, Feb. 9, 2006, at 42; see also M e

12. m o r a n d u m from Elizabeth B. Bazan
& Jennifer K. Elsea, Legislative Att'ys, Cong. Research Serv.
Am. Law Div., to Members of Con-
gress 42-44 g a n . 5, 2006), available at
http://www.fas.org/sgp/crs/intel/m010506.pdf [hereinafter
Bazan & Elsea] (stating that although the legality of the NSA
program is "impossible to determine
without an understanding of the specific facts involved," id. at
42-43, it nevertheless appears t h a t
"the Administration's legal justification . . . does not seem to be
as well-grounded" as the Admini-
stration had suggested, id. at 44).
"2 See, e.g., Mukasey & McConnell, supra note 12, at 3-4
("Providing this liability protection is
critical to the Nation's security As the Senate Select Committee
on Intelligence recognized, 'the
intelligence community cannot obtain the intelligence it needs
without assistance from [the tele-
communications] companies.' T h a t committee also recognized
that companies in the future may
be less willing to assist the Government if they face the threat
of private lawsuits each time they
2009] RECENT LEGISLATION 12 7 5
posed by Senator Specter would have addressed most of these
concerns
while avoiding many of the problems of the blanket immunity
provi-
sion. Congress should have adopted this amendment instead.
When Congress enacted FISA, it attempted to establish a clear
and

13. exclusive framework for all parties to follow when the
government
seeks the aid of private companies in conducting electronic
surveil-
lance.'*^ Members of the Bush Administration appear to have
ac-
knowledged that the TSP operated outside this statutory
framework,"*-»
but they argue that the TSP was nevertheless legally justified
both by
the Authorization for Use of Military Forcê ^̂ (AUMF) passed
by Con-
gress in 2001 and by the President's inherent authority under
Article II
of the Constitution."**̂ The blanket immunity provision
undermines
FISA by granting retroactive immunity to telecommunications
compa-
nies without requiring any showing that they reasonably
believed that
assisting the intelligence agencies was legal;"*̂ the Attorney
General
merely has to certify that the company was told by the
government
that its actions were legal."*« Since the Administration appears
to have
based its legal reasoning upon executive authority rather than
compli-
ance with FISA,'*'' neither the companies nor the President
needed to
believe they were complying with FISA in order for the
companies to
receive immunity. Congress has therefore allowed the
Administration
and private companies to act outside of the statutory framework
that

14. Congress created. The effectiveness of FISA as a
comprehensive
scheme governing electronic surveillance is undermined if the
Presi-
dent can circumvent its procedures simply by asserting that he
has the
executive authority to act outside of its framework. FISA's
effective-
ness will be further undermined if telecommunications
companies are
willing to cooperate with intelligence agencies even when FISA
proce-
dures have not been followed.
are believed to have provided assistance. Finally, allowing
litigation over these matters risks the
disclosure of highly classified information regarding
intelligence sources and methods.").
t í See i8 U.S.C. § 25ii(2)(f) (2006) (The procedures listed in
FISA "shall be the exclusive
means by which electronic surveillance . . . and the interception
of domestic wire, oral, and elec-
tronic communications may be conducted.").
'•'* See, e.g.. Press Briefing, Alberto Gonzales, Att'y Gen., &
Gen. Michael Hayden, Principal
Deputy Dir. for Nat'l Intelligence (Dec. 19, 2005), available at
http://www.whitehouse.gov/news/
releases/2oos/i2/2OO5i2ig-i.html ("I can say unequivocally that
we have used [the TSP] in lieu of
[the FISA process] and this program has been successful.").
•'S Pub. L. No. 107-40, IIS Stat. 224 (2001) (codified at so
U.S.C. § 1S41 note (Supp. V 200s)).
"•̂ For more on the Administration's arguments, see Bazan &

15. Elsea, supra note 41, at 27-42.
•" By contrast, the Specter amendment would have required a
company to have had a good
faith belief that its actions were legal in order to receive
immunity. See 154 CONG. REC. S713
(daily ed. Feb. 6, 2008) (statement of Sen. Whitehouse).
•»a FISA Amendments Act of 2008 § 201, 122 Stat. at 2469
(adding § 8o2(a)(4)(B) to FISA).
•" See Bazan & Elsea, supra note 41, at 27-42.
1276 HARVARD LAW REVIEW [Vol. 122:1271
Furthermore, as the intelligence community increasingly relies
on
the help of private companies to conduct electronic
surveillance, it is
essential that a range of government actors — including
Congress —
gets to weigh in on important policy considerations, including
the
proper balance between individual privacy rights and national
secu-
rity.so Congress can and should serve as a check on the
executive, as
the executive branch may be "institutionally predisposed" to
value se-
curity over civil liberties.^' It is therefore important that
Congress es-
tablish the proper procedures for the Administration to follow
when it
works with the private sector to conduct electronic surveillance,
and

16. that Congress then makes sure that these procedures are
followed.
When the Administration and private parties act outside of the
statu-
tory framework, they should pay a price, even if Congress
would have
approved of their actions had its approval been sought; in this
case,
that price should be civil liability. There is nothing wrong with
Con-
gress changing FISA at the request of the Administration; in
other
provisions of the Act, Congress does just that — it updates and
changes the procedures for conducting electronic surveillance."
How-
ever, in order for Congress to play a meaningful role in
determining
surveillance policy, the Administration should have to seek
Congress's
approval before making a major policy change and acting
outside the
statutory framework. Despite its intention to limit extralegal
arrange-
ments. Congress has signaled to both the Administration and the
tele-
communications companies that they can ignore the statutory
frame-
work without suffering adverse consequences. As a result, the
Administration is likely to rely more on informal agreements
with tele-
communications companies,53 ^nd Congress's role in making
policy
and providing oversight will be diminished.
Finally, the blanket immunity provision will also likely prevent
any

17. judicial rulings on the underlying legal issues at stake.^* No
court will
50 See J o n D . M i c h a e l s , All the President's Spies:
Private-Public Intelligence Partnerships in
the War on Terror, 96 C A L . L . R E V . 9 0 1 , 9 0 4 - 0 5
(2008); see also id. a t 9 3 2 - 3 5 .
51 Id. a t 903; see also H a m d i v. R u m s f e l d , 542 U . S .
507, 545 (2004) (Souter, J., c o n c u r r i n g in
p a r t , d i s s e n t i n g in p a r t , a n d c o n c u r r i n g in t h
e j u d g m e n t ) ("[D]eciding finally on w h a t is a r e a s o n
-
a b l e d e g r e e of g u a r a n t e e d l i b e r t y . . . is n o t
well e n t r u s t e d to t h e E x e c u t i v e B r a n c h of G o v
e r n -
m e n t , w h o s e p a r t i c u l a r r e s p o n s i b i l i t y is to
m a i n t a i n security. . . . [ T ] h e b r a n c h of the G o v e r n
m e n t
a s k e d to c o u n t e r a s e r i o u s t h r e a t is n o t t h e b r a
n c h on w h i c h to rest t h e N a t i o n ' s e n t i r e r e l i a n c
e in
s t r i k i n g t h e b a l a n c e b e t w e e n t h e will to w i n a n
d t h e cost in l i b e r t y on t h e w a y to victory; t h e re-
s p o n s i b i l i t y for s e c u r i t y will n a t u r a l l y amplify
t h e claim t h a t s e c u r i t y l e g i t i m a t e l y r a i s e s . '
A r e a -
s o n a b l e b a l a n c e is m o r e likely to be r e a c h e d on t
h e j u d g m e n t of a different b r a n c h . . . .").
52 See F I S A A m e n d m e n t s A c t of 2008 §§ i o i - i i o ,
122 Stat. a t 2 4 3 7 - 6 7 .
^^ See M i c h a e l s , supra n o t e 50, a t 9 1 0 - 1 2
(discussing these i n f o r m a l a r r a n g e m e n t s in t h e c o
n -

18. text of t h e T S P ) .
st EDWARD C. LIU, CONG. RESEARCH SERV., C R S
REPORT FOR CONGRESS: RETROAC-
TIVE IMMUNITY PROVIDED BY T H E FISA A M E N D M E
N T S ACT OF 2008, at 2 (2008), available
at http://www.fas.org/sgp/crs/intel/RL34600.pdf.
2009] RECENT LEGISLATION 1277
be able to determine the validity of the Administration's
argument
that the President has the inherent constitutional authority to
conduct
electronic surveillance without congressional approval and that
this
authority is supplemented by the AUMF.̂ ^ Regardless of
whether the
Administration's arguments would hold up in court, a decision
one
way or the other would provide more certainty to all parties
involved:
the Administration would know whether it has to follow FISA
under
all circumstances; Congress would know to what extent it can
limit the
President's ability to conduct surveillance; and the
telecommunications
companies would know whether they can rely on the
Administration's
assertions that providing assistance is legal. Also, since any
pending
lawsuits will almost certainly be dismissed, individuals whose
privacy

19. rights were violated will be unable to vindicate those rights in
court.̂ ^
Because of these problems. Congress should not have enacted
the
blanket immunity provision unless it was absolutely necessary,
which
it was not. Proponents of blanket immunity argued that it was
neces-
sary both to prevent unfairly punishing telecommunications
companies
that tried to assist the government in preventing another
terrorist at-
tack" and to ensure the cooperation of telecommunications
companies
in the future.̂ 8 However, the amendment proposed by Senator
Specter
would have accomplished both of these goals while avoiding
some of
the problems inherent in the blanket immunity provision. Under
this
amendment, any telecommunications company that complied
with the
government and acted in good faith would be shielded from
liability.
If the FISA court found that a company did act in good faith,
then the
government would take its place in any lawsuits.^^ According
to Sena-
tor Sheldon Whitehouse, it would be proper to hold the
government
accountable because "if the companies acted reasonably and in
good
faith at the direction of the Government but ended up breaking
the
law, the Government truly is the morally proper party to the

20. case."'̂ °
Furthermore, some companies had threatened that if they were
not
given immunity, they would refuse to cooperate with the
government
in the future "except under strict compulsion.'" '̂ The Specter
amend-
ment would enable most carriers to escape liability through a
showing
55 See B a z a n & E l s e a , supra n o t e 4 1 , a t 27 ( d i s c u
s s i n g t h e A d m i n i s t r a t i o n ' s a r g u m e n t ) .
56 F r e d r i c k s o n & R i c h a r d s o n , supra n o t e 6. S i
m i l a r l a w s u i t s a g a i n s t t h e g o v e r n m e n t h a v e
a l -
r e a d y p r o v e d u n s u c c e s s f u l . See A C L U v. N S A
, 4 9 3 F.3d 644 ( 6 t h Cir. 2007), cert, denied, 128 S.
C t . 1334 (2008).
5 ' See, e.g.. P r e s s R e l e a s e , J o h n M . M c C o n n e l l
, supra n o t e 5.
58 See, e.g., M u k a s e y & M c C o n n e l l , supra n o t e 12,
a t 3 - 4 .
59 See F e d e r a l R u l e of C i v i l P r o c e d u r e 2 5(c) for
t h e p r o c e d u r e o n s u b s t i t u t i o n of p a r t i e s .
60 154 C O N G . R E C . S 7 1 3 (daily e d . F e b . 6, 2008) ( s
t a t e m e n t of S e n . W h i t e h o u s e ) ; see also
SENATE REPUBLICAN POLICY COMM., FISA
MODERNIZATION AND CARRIER LIABILITY 3
(2008).
61 SENATE REPUBLICAN POLICY COMM., supra note 60, at
3.

21. 1278 HARVARD LAW REVIEW [Vol. 122:1271
of good faith, thereby providing them with the desired immunity
and
encouraging their future cooperation.
In addition to addressing many of the concerns of the
proponents
of blanket immunity, the Specter amendment would also have
reduced
some of the problems caused by the blanket immunity provision.
First, by protecting companies only after a judicial finding that
they
acted in reasonable good faith. Congress would have sent a
clear signal
to private companies that they must determine for themselves
whether
a government request for assistance is legal. Congress would
also have
sent a message to the President that he cannot ignore existing
statutes
and authorize private parties to commit potentially unlawful
actions
without being subjected to intense judicial scrutiny. Congress
would
therefore have encouraged both the Administration and the
private
sector to comply with FISA. As a result. Congress would have
reas-
serted its role in determining the proper surveillance procedures
by
holding parties accountable for circumventing those procedures.
The
Specter amendment may also have allowed courts to rule

22. directly on
the legality of several aspects of the TSR Finally, the
amendment
would have given private citizens the "ability to vindicate their
rights
in court regarding wiretapping abuses of the past."^^
Senator Specter's amendment presented Congress with an oppor-
tunity to encourage both the executive branch and the private
sector to
follow the law, to provide some accountability for what appear
to be
extensive violations of the law, and to reassert itself as an
important
player in the debate over how to conduct electronic
surveillance. Con-
gress could have achieved these goals without making any
major sacri-
fices in terms of fairness or national security. Yet Congress, at
the be-
hest of the Administration and the telecommunications industry,
instead chose to provide blanket immunity to the
telecommunications
companies and virtually ensure that important legal questions
about
the TSP will remain unanswered." Although it is important to
en-
courage cooperation between telecommunications companies
and the
intelligence agencies, it is also important for Congress to play a
role in
determining the proper balance between security and civil
liberties
rather than leaving such a determination to the
Administration.^" By
allowing the Administration and telecommunications companies

23. to ig-
nore FISA with impunity. Congress has abdicated this
responsibility.
Fredrickson & Richardson, supra note 6.
See L I U , supra note 54, at 2.
See Michaels, supra note 50, at 903 & n.s.
RECENT LEGISLATION
E L E C T R O N I C SURVEILLANCE — C O N G R E S S G
R A N T S T E L E -
COMMUNICATIONS C O M P A N I E S R E T R O A C T I V
E I M M U N I T Y E R O M
C I V I L SUITS E O R COMPLYING W I T H N S A T E R R
O R I S T SURVEIL-
L A N C E PROGRAM. — FISA Amendments Act of 2008, Pub.
L. No.
110-261, 122 Stat. 2436.
In December 2005, the New York Times reported that President
Bush had secretly authorized the National Security Agency
(NSA) to
eavesdrop without a warrant on people in the United States —
includ-
ing American citizens — for evidence of terrorist activity.^ As
part of
the "terrorist surveillance program"^ (TSP), the executive
branch had
"provided written requests or directives to U.S. electronic
communica-

24. tion service providers to obtain their assistance with
communications
intelligence activities that had been authorized by the President.
"̂ Af-
ter this information became public, over forty lawsuits were
filed
against a number of telecommunications companies for their
alleged
role in assisting the TSP; collectively, "these suits s[ought]
hundreds of
billions of dollars in damages."'* The Bush Administration
urged Con-
gress to provide retroactive immunity for these companies;^
civil liber-
ties advocates and other groups opposed the idea.*'
On July 10, 2008, Congress passed the FISA Amendments Act
of
2008,' which provides blanket retroactive* immunity to
telecommuni-
' James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers
Without Courts, N.Y. TIMES,
Dec. 16, 2005, at A i .
2 John Diamond & David Jackson, White House on Offense in
NSA Debate, USA TODAY,
Jan. 24, 2006, at ioA.
3 S. R E P . N O . 110-209, at 9 (2007).
'* Id. at 7. Normally, electronic communication service
providers may only provide assistance
in intelligence gathering activities if they are presented with
either a court order or a written certi-
fication "that no warrant or court order is required by law, that

25. all statutory requirements have
been met, and that the specified assistance is required." i8
U.S.C. § 25ii{2)(a)(ii) (2006).
5 See, e.g.. Press Release, John M. McConnell, Dir. of Nat'l
Intelligence, Modernization of the
Foreign Intelligence Surveillance Act (FISA) (Aug. 2, 2007),
available at http://www.dni.gov/
press_releases/20070802_release.pdf ("[T]hose who assist the
Government in protecting us from
harm must be protected from liability.").
* See, e.g.. Letter from Caroline Fredrickson, Dir., Wash.
Legislative Office, ACLU, & Mi-
chelle Richardson, Legislative Consultant, to the Senate (Feb. 4,
2008), http://www.aclu.org/
safefree/general/339O9leg200802O4.html [hereinafter
Fredrickson & Richardson] (urging Senators
to "vote ' n o ' on final passage to any spying bill t h a t . . .
grants retroactive immunity to companies
who broke the law by facilitating illegal spying"); Letter from
MoveOn.org Political Action Team
to MoveOn Members (June 21, 2008),
http://pol.moveon.org/immunity/o8o621obama.html (urging
members to call Senator Barack Obama to "[a]sk him to block
any compromise that includes im-
munity for phone companies that helped Bush break the law").
' Pub. L. No. 110-261, 122 Stat. 2436 (to be codified in
scattered sections of 50 U.S.C).
* FISA already provided for prospective civil immunity for
private parties that assist with
electronic surveillance, so long as they do it under the auspices
of the statutory framework.

26. I 2 7 1
1 2 7 2 HARVARD LAW REVIEW [Vol. 122:1271
cations companies that assisted the TSP.̂ This provision allows
the
Attorney General to immunize these private parties from suit by
certi-
fying that the President requested their assistance and assured
them
that their actions were legal.*° The provision undermines both
the
statutory scheme of the Foreign Intelligence Surveillance Act of
1978"
(FISA) and Congress's role in striking the proper balance
between na-
tional security and civil liberties. Although proponents argued
that
blanket immunity was necessary to protect telecommunications
com-
panies from unfair penalties and to encourage their compliance
in the
future,12 an amendment proposed by Senator Arlen Specter'^
would
have a(idressed these concerns while reducing some of the
problems
associated with the blanket immunity provision. Congress
should
have passed Senator Specter's amendment rather than the
blanket
immunity provision that it ultimately enacted.'"*
The first version of the bill, entitled the RESTORE Act of
2007,'̂

27. was introduced in the House by Representative John Conyers on
Oc-
tober 9, 2007.'̂ This bill did not provide for any retroactive
immu-
nity." After extensive debate, the House passed the bill on
November
15.̂ 8 Meanwhile, on October 26, the Senate Select Committee
on In-
telligence reported an original bill entitled the FISA
Amendments Act
of 2007,'' which contained a provision for retroactive immunity
simi-
lar to the provision that was ultimately enacted.2° The
Intelligence
See 50 U.S.C. § i8o5(i) (2000) ("No cause of action shall lie in
any c o u r t a g a i n s t
a n y . . . person . . . t h a t furnishes any information, facilities,
or technical assistance in a c c o r d a n c e
with a court order or request for emergency assistance u n d e r
this c h a p t e r for electronic
surveillance . . . .").
5 See F I S A A m e n d m e n t s Act of 2008 § 201, 122 Stat. a
t 2468-70 (adding § 802 to FISA).
10 See id. § 201, 122 Stat. a t 2468-69 (adding § 802(a) to
FISA).
" P u b . L. N o . 95-511, 92 Stat. 1783 (codified as a m e n d e
d in scattered sections of 50 U . S . C ) .
'2 See, e.g.. Letter from Michael B. Mukasey, A t t ' y Gen., & J
. M . McConnell, Dir. of N a t ' l I n -
telligence, to N a n c y Pelosi, Speaker, U.S. H o u s e of
Representatives (June 19, 2008) [hereinafter
M u k a s e y & McConnell], available at
http://www.lifeandliberty.gov/d0cs/ag-dni-fisa-letter061908

28. pdf.
'^ See 154 C O N G . R E C . S712 (daily ed. F e b . 6, 2008)
(statement of Sen. Specter).
'"* Senator Specter's a m e n d m e n t w a s not the only
proposed c o m p r o m i s e . For example. Sena-
tor D i a n n e Feinstein proposed providing i m m u n i t y for
telecommunications c o m p a n i e s only after
a finding by the F I S A court t h a t a c o m p a n y received a
w r i t t e n directive from the A d m i n i s t r a t i o n
certifying t h a t compliance w a s lawful a n d t h a t the c o m
p a n y h a d held a n "objectively reasonable
belief u n d e r the circumstances t h a t compliance with the
written request or directive w a s lawful."
Id. a t S707. T h e s e compromises sought to provide protection
for c o m p a n i e s t h a t reasonably be-
lieved t h a t they were complying with the law, w i t h o u t
effectively authorizing the President to use
private parties to c i r c u m v e n t t h e law.
'5 H.R. 3773, I i o t h Cong. (2007).
'6 Id.
1' 153 C O N G . R E C . H I I , 6 6 3 (daily ed. Oct. 17, 2007)
(statement of R e p . Conyers).
1* Id. a t H i 4 , o 6 2 (daily ed. Nov. 15, 2007). T h e bill
passed by a vote of 227 to 189. Id.
19 S. 2248, I i o t h Cong, (as reported by S. C o m m . on
Intelligence, Oct. 26, 2007).
20 See id. tit. U.
2OO9] RECENT LEGISLATION 1 2 7 3
Committee report stated that the bill extended retroactive

29. immunity to
telecommunications companies because "they acted in good
faith and
should be entitled to protection from civil suit,"^! On November
i6,
the Senate Committee on the Judiciary reported a different
version of
the bill,22 which "d[id] not include . . . blanket retroactive
immunity."^^
However, the Senate voted to table the Judiciary Committee
bilV'»
leaving the Intelligence Committee bill as the sole version
under con-
sideration in the Senate.
Senator Specter subsequently proposed an amendment that
would
"substitute the U.S. Government as a party defendant for the
tele-
phone companies," thereby shielding them from liability while
still al-
lowing courts to rule on the legality of the TSP and the
constitutional
questions raised by the President's assertions of executive
authority.^^
Government substitution would be dependent upon a finding by
the
FISA court that the telecommunications companies acted "in
good
faith."26 The Senate rejected this amendment by a vote of sixty-
eight
to thirty." Ultimately, the Senate passed the bill and sent it back
to
the House with the blanket immunity provision intact.^»
On June 19, 2008, Representative Silvestre Reyes introduced

30. the
FISA Amendments Act of 2008̂ 9 in the House.̂ o This bill was
sub-
stantially the same as the version passed by the Senate.^' On
June 20,
the House voted to pass the bill.̂ ^ The Senate subsequently
consid-
ered the House bill and rejected three more amendments that
would
have altered or eliminated the retroactive immunity provision.̂ ^
On
July 9, the Senate passed the House bill by a vote of sixty-nine
to
twenty-eight.34 The President signed the bill into law the next
day.̂ ^
The final version of the immunity provision states that courts
should dismiss any suit against an electronic service provider
alleged
21 S. REP. No. 110-209, at 10(2007).
22 153 C O N G . R E C . D 1 5 3 7 ( d a i l y e d . N o v . 15,
2007). T h e J u d i c i a r y C o m m i t t e e offered " a n
a m e n d m e n t in t h e n a t u r e of a s u b s t i t u t e . " Id.
23 S. REP. N o . 110-258, a t 4 (2008).
24 154 C O N G . R E C . S 2 5 5 - S 6 (daily ed. J a n . 24,
2008). S e n a t o r K i t B o n d m o v e d to t a b l e t h e
a m e n d m e n t ; t h i s m o t i o n p a s s e d by a v o t e of 60
to 36. Id.
25 Id. a t S712 (daily ed. F e b . 6 , 2 0 0 8 ) ( s t a t e m e n t of
Sen. Specter).

31. 26 Id. a t S713 ( s t a t e m e n t of Sen. W h i t e h o u s e ) .
2 ' Id. a t S889 (daily ed. F e b . 12, 2008).
28 Id. a t S904. T h e S e n a t e p a s s e d S. 2248 by a v o t e
of 68 to 29. Id.
29 H . R . 6304, i i o t h C o n g . (2008).
30 154 C O N G . R E C . H 5 7 2 8 (daily ed. J u n e 19, 2008).
3> Compare H . R . 6304, with H . R . 3 7 7 3 , i i o t h C o n g .
(2008) (as p a s s e d by t h e S e n a t e , F e b . 12,
2008).
32 154 C O N G . R E C . H S 7 7 4 ( d a i l y e d . J u n e 20,
2008). T h e bill p a s s e d b y a v o t e of 293 to 129.
Id.
33 Id. a t S 6 4 6 9 - 7 0 (daily ed. J u l y 9, 2008).
3't Id. a t S 6 4 7 6 .
35 Id. a t D 8 7 6 ( d a i l y e d . J u l y 1 1 , 2008).
1274 HARVARD LAW REVIEW [Vol. 122:1271
to have provided assistance "in connection with an intelligence
activity
involving communications that was . . . designed to detect or
prevent a

32. terrorist attack . . . against the United States''̂ ^ jf ¿he Attorney
General
certifies that one of two conditions is met. Suits should be
dismissed if
the Attorney General certifies either that the company was
acting pur-
suant to a "written request or directive" from the government
indicat-
ing that such activity was "(i) authorized by the President; and
(ii) de-
termined to be lawful,"37 or else that the company "did not
provide the
alleged assistance."^» The Act provides for a "substantial
evidence"
standard for judicial review of the Attorney General's
certifications.^'
Additionally, the Act provides that courts may limit public
disclosure
of any certification or supplemental materials that would prove
harm-
ful to national security.''°
The blanket immunity provision retroactively validates
presidential
directives to private parties that ordered them to conduct
potentially
illegal actions.-*' This result is problematic for several reasons.
First,
it undermines the statutory framework that Congress originally
estab-
lished in FISA. Second, it undermines the ability of Congress to
play a
meaningful role in determining the proper procedures for
gathering in-
telligence, as it weakens the requirement that the
Administration get

33. statutory approval before fundamentally changing surveillance
policy.
Finally, it greatly reduces the chances that a court will be able
to re-
view the legality of the TSP and the constitutionality of the
President's
assertions of executive authority. Proponents of the blanket
immunity
provision argued that it was necessary for a number of reasons,
includ-
ing fairness and national security.̂ ^ However, the amendment
pro-
36 FISA Amendments Act of 2008 § 201, 122 Stat. at 2468-69
(adding § 8o2(a)(4)(A) to FISA).
" Id. § 201, 122 Stat. at 2469 (adding § 8o2(a)(4XB) to FISA).
38 Id. (adding § 8o2(a)(5) to FISA).
39 Id. (adding § 8o2(b)(i) to FISA).
••O Id. (adding § 802 (c) to FISA).
"• T h e question of whether the T S P was in fact legally
justified is still open to debate, as the
Supreme Court has not ruled directly on this issue. T h e
Administration's legal justifications are
at the very least of questionable merit. See Curtis Bradley et al.,
On NSA Spying: A Letter to
Congress, N.Y. REV. BOOKS, Feb. 9, 2006, at 42; see also M e
m o r a n d u m from Elizabeth B. Bazan
& Jennifer K. Elsea, Legislative Att'ys, Cong. Research Serv.
Am. Law Div., to Members of Con-
gress 42-44 g a n . 5, 2006), available at
http://www.fas.org/sgp/crs/intel/m010506.pdf [hereinafter
Bazan & Elsea] (stating that although the legality of the NSA
program is "impossible to determine
without an understanding of the specific facts involved," id. at
42-43, it nevertheless appears t h a t

34. "the Administration's legal justification . . . does not seem to be
as well-grounded" as the Admini-
stration had suggested, id. at 44).
"2 See, e.g., Mukasey & McConnell, supra note 12, at 3-4
("Providing this liability protection is
critical to the Nation's security As the Senate Select Committee
on Intelligence recognized, 'the
intelligence community cannot obtain the intelligence it needs
without assistance from [the tele-
communications] companies.' T h a t committee also recognized
that companies in the future may
be less willing to assist the Government if they face the threat
of private lawsuits each time they
2009] RECENT LEGISLATION 12 7 5
posed by Senator Specter would have addressed most of these
concerns
while avoiding many of the problems of the blanket immunity
provi-
sion. Congress should have adopted this amendment instead.
When Congress enacted FISA, it attempted to establish a clear
and
exclusive framework for all parties to follow when the
government
seeks the aid of private companies in conducting electronic
surveil-
lance.'*^ Members of the Bush Administration appear to have
ac-
knowledged that the TSP operated outside this statutory
framework,"*-»
but they argue that the TSP was nevertheless legally justified

35. both by
the Authorization for Use of Military Forcê ^̂ (AUMF) passed
by Con-
gress in 2001 and by the President's inherent authority under
Article II
of the Constitution."**̂ The blanket immunity provision
undermines
FISA by granting retroactive immunity to telecommunications
compa-
nies without requiring any showing that they reasonably
believed that
assisting the intelligence agencies was legal;"*̂ the Attorney
General
merely has to certify that the company was told by the
government
that its actions were legal."*« Since the Administration appears
to have
based its legal reasoning upon executive authority rather than
compli-
ance with FISA,'*'' neither the companies nor the President
needed to
believe they were complying with FISA in order for the
companies to
receive immunity. Congress has therefore allowed the
Administration
and private companies to act outside of the statutory framework
that
Congress created. The effectiveness of FISA as a
comprehensive
scheme governing electronic surveillance is undermined if the
Presi-
dent can circumvent its procedures simply by asserting that he
has the
executive authority to act outside of its framework. FISA's
effective-
ness will be further undermined if telecommunications

36. companies are
willing to cooperate with intelligence agencies even when FISA
proce-
dures have not been followed.
are believed to have provided assistance. Finally, allowing
litigation over these matters risks the
disclosure of highly classified information regarding
intelligence sources and methods.").
t í See i8 U.S.C. § 25ii(2)(f) (2006) (The procedures listed in
FISA "shall be the exclusive
means by which electronic surveillance . . . and the interception
of domestic wire, oral, and elec-
tronic communications may be conducted.").
'•'* See, e.g.. Press Briefing, Alberto Gonzales, Att'y Gen., &
Gen. Michael Hayden, Principal
Deputy Dir. for Nat'l Intelligence (Dec. 19, 2005), available at
http://www.whitehouse.gov/news/
releases/2oos/i2/2OO5i2ig-i.html ("I can say unequivocally that
we have used [the TSP] in lieu of
[the FISA process] and this program has been successful.").
•'S Pub. L. No. 107-40, IIS Stat. 224 (2001) (codified at so
U.S.C. § 1S41 note (Supp. V 200s)).
"•̂ For more on the Administration's arguments, see Bazan &
Elsea, supra note 41, at 27-42.
•" By contrast, the Specter amendment would have required a
company to have had a good
faith belief that its actions were legal in order to receive
immunity. See 154 CONG. REC. S713
(daily ed. Feb. 6, 2008) (statement of Sen. Whitehouse).
•»a FISA Amendments Act of 2008 § 201, 122 Stat. at 2469

37. (adding § 8o2(a)(4)(B) to FISA).
•" See Bazan & Elsea, supra note 41, at 27-42.
1276 HARVARD LAW REVIEW [Vol. 122:1271
Furthermore, as the intelligence community increasingly relies
on
the help of private companies to conduct electronic
surveillance, it is
essential that a range of government actors — including
Congress —
gets to weigh in on important policy considerations, including
the
proper balance between individual privacy rights and national
secu-
rity.so Congress can and should serve as a check on the
executive, as
the executive branch may be "institutionally predisposed" to
value se-
curity over civil liberties.^' It is therefore important that
Congress es-
tablish the proper procedures for the Administration to follow
when it
works with the private sector to conduct electronic surveillance,
and
that Congress then makes sure that these procedures are
followed.
When the Administration and private parties act outside of the
statu-
tory framework, they should pay a price, even if Congress
would have
approved of their actions had its approval been sought; in this
case,
that price should be civil liability. There is nothing wrong with

38. Con-
gress changing FISA at the request of the Administration; in
other
provisions of the Act, Congress does just that — it updates and
changes the procedures for conducting electronic surveillance."
How-
ever, in order for Congress to play a meaningful role in
determining
surveillance policy, the Administration should have to seek
Congress's
approval before making a major policy change and acting
outside the
statutory framework. Despite its intention to limit extralegal
arrange-
ments. Congress has signaled to both the Administration and the
tele-
communications companies that they can ignore the statutory
frame-
work without suffering adverse consequences. As a result, the
Administration is likely to rely more on informal agreements
with tele-
communications companies,53 ^nd Congress's role in making
policy
and providing oversight will be diminished.
Finally, the blanket immunity provision will also likely prevent
any
judicial rulings on the underlying legal issues at stake.^* No
court will
50 See J o n D . M i c h a e l s , All the President's Spies:
Private-Public Intelligence Partnerships in
the War on Terror, 96 C A L . L . R E V . 9 0 1 , 9 0 4 - 0 5
(2008); see also id. a t 9 3 2 - 3 5 .
51 Id. a t 903; see also H a m d i v. R u m s f e l d , 542 U . S .

39. 507, 545 (2004) (Souter, J., c o n c u r r i n g in
p a r t , d i s s e n t i n g in p a r t , a n d c o n c u r r i n g in t h
e j u d g m e n t ) ("[D]eciding finally on w h a t is a r e a s o n
-
a b l e d e g r e e of g u a r a n t e e d l i b e r t y . . . is n o t
well e n t r u s t e d to t h e E x e c u t i v e B r a n c h of G o v
e r n -
m e n t , w h o s e p a r t i c u l a r r e s p o n s i b i l i t y is to
m a i n t a i n security. . . . [ T ] h e b r a n c h of the G o v e r n
m e n t
a s k e d to c o u n t e r a s e r i o u s t h r e a t is n o t t h e b r a
n c h on w h i c h to rest t h e N a t i o n ' s e n t i r e r e l i a n c
e in
s t r i k i n g t h e b a l a n c e b e t w e e n t h e will to w i n a n
d t h e cost in l i b e r t y on t h e w a y to victory; t h e re-
s p o n s i b i l i t y for s e c u r i t y will n a t u r a l l y amplify
t h e claim t h a t s e c u r i t y l e g i t i m a t e l y r a i s e s . '
A r e a -
s o n a b l e b a l a n c e is m o r e likely to be r e a c h e d on t
h e j u d g m e n t of a different b r a n c h . . . .").
52 See F I S A A m e n d m e n t s A c t of 2008 §§ i o i - i i o ,
122 Stat. a t 2 4 3 7 - 6 7 .
^^ See M i c h a e l s , supra n o t e 50, a t 9 1 0 - 1 2
(discussing these i n f o r m a l a r r a n g e m e n t s in t h e c o
n -
text of t h e T S P ) .
st EDWARD C. LIU, CONG. RESEARCH SERV., C R S
REPORT FOR CONGRESS: RETROAC-
TIVE IMMUNITY PROVIDED BY T H E FISA A M E N D M E
N T S ACT OF 2008, at 2 (2008), available
at http://www.fas.org/sgp/crs/intel/RL34600.pdf.

40. 2009] RECENT LEGISLATION 1277
be able to determine the validity of the Administration's
argument
that the President has the inherent constitutional authority to
conduct
electronic surveillance without congressional approval and that
this
authority is supplemented by the AUMF.̂ ^ Regardless of
whether the
Administration's arguments would hold up in court, a decision
one
way or the other would provide more certainty to all parties
involved:
the Administration would know whether it has to follow FISA
under
all circumstances; Congress would know to what extent it can
limit the
President's ability to conduct surveillance; and the
telecommunications
companies would know whether they can rely on the
Administration's
assertions that providing assistance is legal. Also, since any
pending
lawsuits will almost certainly be dismissed, individuals whose
privacy
rights were violated will be unable to vindicate those rights in
court.̂ ^
Because of these problems. Congress should not have enacted
the
blanket immunity provision unless it was absolutely necessary,
which
it was not. Proponents of blanket immunity argued that it was
neces-

41. sary both to prevent unfairly punishing telecommunications
companies
that tried to assist the government in preventing another
terrorist at-
tack" and to ensure the cooperation of telecommunications
companies
in the future.̂ 8 However, the amendment proposed by Senator
Specter
would have accomplished both of these goals while avoiding
some of
the problems inherent in the blanket immunity provision. Under
this
amendment, any telecommunications company that complied
with the
government and acted in good faith would be shielded from
liability.
If the FISA court found that a company did act in good faith,
then the
government would take its place in any lawsuits.^^ According
to Sena-
tor Sheldon Whitehouse, it would be proper to hold the
government
accountable because "if the companies acted reasonably and in
good
faith at the direction of the Government but ended up breaking
the
law, the Government truly is the morally proper party to the
case."'̂ °
Furthermore, some companies had threatened that if they were
not
given immunity, they would refuse to cooperate with the
government
in the future "except under strict compulsion.'" '̂ The Specter
amend-
ment would enable most carriers to escape liability through a
showing

42. 55 See B a z a n & E l s e a , supra n o t e 4 1 , a t 27 ( d i s c u
s s i n g t h e A d m i n i s t r a t i o n ' s a r g u m e n t ) .
56 F r e d r i c k s o n & R i c h a r d s o n , supra n o t e 6. S i
m i l a r l a w s u i t s a g a i n s t t h e g o v e r n m e n t h a v e
a l -
r e a d y p r o v e d u n s u c c e s s f u l . See A C L U v. N S A
, 4 9 3 F.3d 644 ( 6 t h Cir. 2007), cert, denied, 128 S.
C t . 1334 (2008).
5 ' See, e.g.. P r e s s R e l e a s e , J o h n M . M c C o n n e l l
, supra n o t e 5.
58 See, e.g., M u k a s e y & M c C o n n e l l , supra n o t e 12,
a t 3 - 4 .
59 See F e d e r a l R u l e of C i v i l P r o c e d u r e 2 5(c) for
t h e p r o c e d u r e o n s u b s t i t u t i o n of p a r t i e s .
60 154 C O N G . R E C . S 7 1 3 (daily e d . F e b . 6, 2008) ( s
t a t e m e n t of S e n . W h i t e h o u s e ) ; see also
SENATE REPUBLICAN POLICY COMM., FISA
MODERNIZATION AND CARRIER LIABILITY 3
(2008).
61 SENATE REPUBLICAN POLICY COMM., supra note 60, at
3.
1278 HARVARD LAW REVIEW [Vol. 122:1271
of good faith, thereby providing them with the desired immunity
and
encouraging their future cooperation.
In addition to addressing many of the concerns of the

43. proponents
of blanket immunity, the Specter amendment would also have
reduced
some of the problems caused by the blanket immunity provision.
First, by protecting companies only after a judicial finding that
they
acted in reasonable good faith. Congress would have sent a
clear signal
to private companies that they must determine for themselves
whether
a government request for assistance is legal. Congress would
also have
sent a message to the President that he cannot ignore existing
statutes
and authorize private parties to commit potentially unlawful
actions
without being subjected to intense judicial scrutiny. Congress
would
therefore have encouraged both the Administration and the
private
sector to comply with FISA. As a result. Congress would have
reas-
serted its role in determining the proper surveillance procedures
by
holding parties accountable for circumventing those procedures.
The
Specter amendment may also have allowed courts to rule
directly on
the legality of several aspects of the TSR Finally, the
amendment
would have given private citizens the "ability to vindicate their
rights
in court regarding wiretapping abuses of the past."^^
Senator Specter's amendment presented Congress with an oppor-
tunity to encourage both the executive branch and the private

44. sector to
follow the law, to provide some accountability for what appear
to be
extensive violations of the law, and to reassert itself as an
important
player in the debate over how to conduct electronic
surveillance. Con-
gress could have achieved these goals without making any
major sacri-
fices in terms of fairness or national security. Yet Congress, at
the be-
hest of the Administration and the telecommunications industry,
instead chose to provide blanket immunity to the
telecommunications
companies and virtually ensure that important legal questions
about
the TSP will remain unanswered." Although it is important to
en-
courage cooperation between telecommunications companies
and the
intelligence agencies, it is also important for Congress to play a
role in
determining the proper balance between security and civil
liberties
rather than leaving such a determination to the
Administration.^" By
allowing the Administration and telecommunications companies
to ig-
nore FISA with impunity. Congress has abdicated this
responsibility.
Fredrickson & Richardson, supra note 6.
See L I U , supra note 54, at 2.
See Michaels, supra note 50, at 903 & n.s.