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Immunity for Telecom Compliance in Warrantless Spying ?

Erin Simon — Thu, 08 Nov 2007 22:04:54 -0600

The Senate Judiciary Committee was supposed to vote today on a bill to amend the Foreign Intelligence Surveillance Act, but the vote has been pushed back to next week to give lawmakers more time to consider proposed amendments. One of the key disputes is whether to grant immunity to the telephone and internet service providers who are accused of illegally participating in the NSA's warrantless surveillance programs. Immunity would end lawsuits by state public utility commissions and civil liberties groups (among them my former employer the Electronic Frontier Foundation) which charge the telecoms with turning over massive amounts of user data to the government in violation of the Electronic Communications Privacy Act (ECPA), among other laws. The government and the telecoms in those cases have thus far been unsuccessful in trying to get the cases thrown out on the grounds that the possible surveillance is a state secret, so now it appears the telecom lobbyists are trying to win in Washington instead.

I won't pretend to be neutral on this issue; I went to law school because I believe, in a fundamental and probably naïve way, in the rule of law. If you go to court and you lose, you shouldn't be able to buy yourself a get out of jail free card by donating to congressional reelection funds.

Mark Klein, the AT&T technician who blew the whistle on that company turning over millions of email and phone communications to the NSA, went to DC this week to make the same point directly to Congress. He told the Washington Post, "If they've done something massively illegal and unconstitutional -- well, they should suffer the consequences. It's not my place to feel bad for them. They made their bed, they have to lie in it. The ones who did [anything wrong], you can be sure, are high up in the company. Not the average Joes, who I enjoyed working with."

Instead of blanket immunity, some lawmakers are tossing around the idea of indemnification – the telecoms would still litigate the cases against them, but the government would pay any damages. Another compromise proposal would have the government substitute for the telecoms, stepping into their place in the lawsuits. Either of these proposals would permit the cases to continue, which would allow us the public to find out just how extensive the alleged surveillance was.

Part of Patriot Act Struck Down

Erin Simon — Thu, 27 Sep 2007 14:01:59 -0500

An Oregon District Court has struck down two sections of the Foreign Intelligence Surveillance Act (FISA) as amended by the Patriot Act for violating the Fourth Amendment. 50 U.S.C. §§ 1804 and 1823 allow the government to conduct surveillance without a warrant when collection of foreign intelligence is “a significant purpose” of the surveillance. A line of cases interpreting the Fourth Amendment's probable cause and warrant requirements has held that foreign intelligence must be the “primary purpose” of such surveillance in order to square with the Constitution.

The case began with the misidentification of a fingerprint in the investigation of 2004's train bombings in Madrid. The FBI mistakenly identified Portland attorney Brandon Mayfield, a Muslim convert, as a suspect in that act of terrorism. Before arresting him, the Bureau accordingly searched his house and office, put him under round-the-clock surveillance, and wiretapped his phone, all without judicial oversight, and all permitted under the language of the Patriot Act's revisions to FISA.

Mayfield settled part of the suit for $2 million dollars, but the settlement left the door open for the attorney to challenge the law that had authorized his surveillance. A Department of Justice internal probe called the Mayfield investigation inappropriate and potentially motivated by his Muslim faith.

Yesterday's District Court opinion stressed the importance of the 4th Amendment's check against such abuses: "For over 200 years, this Nation has adhered to the rule of law - with unparalleled success. A shift to a Nation based on extra-constitutional authority is prohibited, as well as ill-advised."

Photo courtesy nolifebeforecoffee.

FISA Taken Out Behind Shed, Shot

Erin Simon — Tue, 07 Aug 2007 16:04:15 -0500

The unbelievably-named Protect America Act, which was rammed through both houses of Congress in the last hours of this year's legislative session, amends the Foreign Intelligence Surveillance Act to give the government the legal ability to do just about everything it has so far been doing illegally.

The Act permits warrantless surveillance targeted at persons (even US citizens) reasonably believed to be located outside the US, which sounds like it legitimates what the government has been calling the Terrorist Surveillance Program. It also authorizes the government to secretly order communications service providers – phone companies, ISPs, email providers – to create back doors in their services to facilitate eavesdropping. Providers can appeal the orders to the secret FISA Court, but are immune from suit for participating. Those who refuse to comply can be held in contempt.

The Act also grandfathers in whatever current surveillance programs have received FISA Court approval. It's set to expire in six months, but programs authorized under the Act can last up to a year before needing re-authorization.

Plus, the person responsible for submitting a twice-yearly report on surveillance abuses is the Attorney General, the same Alberto Gonzales who has already lied under oath to Congress about the existence of surveillance abuses.

Democrats had prepared their own bill, featuring oversight and limits on domestic spying. President “30% Approval” Bush threatened to veto it and then blame Democrats for the lack of a bill. Facing Republican accusations that without this bill, Washington D.C. would be hit by a terrorist attack in August, the Democratically-controlled congress passed the bill.

Thumbnail photo courtesy nolifebeforecoffee.