FISA and Telecom Immunity

[jackofallgeeks]

So, if you pay attention to certain news outlets, you'll have heard about
the FISA legislation which is trying to get through our Congress. It has
passed the House of Representatives but is currently stuck in the Senate.
The original law expired earlier this month, and there has been a lot of
pressure to get this new bill through -- though, notably, the contentious
issue is retroactive immunity from lawsuits for Telecoms who cooperated with
the bill for the last couple years.

FISA is the Foreign Intelligence Surveillance Act, and it's what's responsible
for the warrant-less wiretaps you've probably heard of. I'm not familiar
with the details of it all, but the way it works is that communications from
foreign targets (people in other countries we know or suspect to be
terrorists) can pass through US phone lines, and we're interested in what
they're saying. Now, I imagine these communications can be (1) foreigner in
a foreign land, through the US, to another foreigner in another foreign
land, (2) foreigner in a foreign land to a non-citizen here in the US, or
(3) foreigner in a foreign land to a US citizen here at home. I imagine
there could be a US citizen in a foreign land to someone over here, too, but
I'm pretty sure any of those permutations fall outside the purview of this
law -- and in fact, so does (3), unless I'm mistaken. If they determine
that a US Citizen is involved, they can't listen in without a warrant. Of
course, if the US citizen is talking to a known or suspected terrorist, I
imagine they could get a warrant without much trouble, what with probably
cause and all.

So, all that being said, the immunity would set Telecoms beyond the reach of
the law in cases where they knew a US citizen was involved but kept
listening anyways without a warrant. In other words, a crime was committed
by a corporation against a citizen of the United States (at the behest of
the Government of the United States), and now that Government (or an arm of
it) wants to deny US. Citizens their right to restitution. The point is
that a crime was committed against a US citizen, who is guaranteed
protection from such invasions by the Constitution, and that is unacceptable
regardless of who asked for it or what motivation prompted it.

I think the FISA bill, as I understand it, is a useful tool in staying aware
of and prepared for threats against our nation and her people, and I
encourage it being passed through. But I would rather it NOT be passed at
all than that it be passed with a provision exempting corporations from
their legal culpability to We The People. We ought not sell our rights and
freedoms away for some small sense of security and the illusion of
protection, or else we will have and deserve neither freedom nor security.

Whatever your opinion on FISA, write to your
congressmen.

Comments

"Otherwise it wouldn't spell anything ..."

[bsgnome.livejournal.com]

It's actually the Foreign Intelligence Surveillance Act, not the Foreign Intelligence wirelesS Act ... jus' sayin'.

Re: "Otherwise it wouldn't spell anything ..."

[jackofallgeeks.livejournal.com]

-laughs- I have no idea how that got there: the page I cut-and-paste from says "Surveillance." As you know, I didn't get much sleep last night...

[dikaiosunh.livejournal.com]

I'm of two minds about the telecom immunity. I don't like it. But, on the other hand...

The immunity from lawsuit is for telecoms that gave the government access to their traffic. The rationale is that the government told them that what they were asking for was *legal* and in fact *legally required.* So, the argument in favor of immunity is that, when an executive branch tells you something is legal, then it's tough to say "no." (Though, apparently, Qwest did). For me, the bottom line is that I think *someone's* head should roll, but it probably should be the administration's, not the telecoms'.

By the by... the Administration's interpretation is that the AUMF gives them the ability to wiretap any call that they believe is connected to al-Qaeda. The NSA program was (they say, though there are worries) restricted only to calls one end of which was in a foreign country (so, your 2&3 primarily - citizenship doesn't matter; Hamdi, e.g., was a US Citizen). The telecoms are also in the hot seat over allegations that they turned over data on purely domestic calls to the NSA. Normally, this sort of wiretapping is legal, if it's approved by the secret FISA court. The court has very rarely (I think only once) turned down an application, has a 24 hour turnaround, and I believe allows you to wiretap for a couple days before applying for the warrant if you say it's an emergency. The administration's innovation was to say that the AUMF removed the need to go to the FISA court. Also, the purely domestic data-mining would be outside FISA's scope, since it was of people not suspected of terrorist activity (the pro-surveillance theory would be that you need to mine the data to figure out who is connected with terrorists).

[dikaiosunh.livejournal.com]

Oh, and the Protect America Act (the one that just expired, amid much doom and gloom) expanded the NSA's spying authority to cover foreign targets in the U.S. Though, contrary to the administration's claims, the expiration does not mean they have to terminate the surveillance of known terrorist groups (even of new members of those groups). It just means they can't spy on new groups right now (and those authorizations will eventually expire).

And, I feel the need to add... Congress *did* vote (infuriating me) to extend the PAA powers. The president *vetoed* the bill over the lack of telecom immunity.

My favorite line from his press conference was to the effect that if we let the telecoms get sued, they might not give the government this kind of info in the future. Well... you know... duh.

One last convoluted thing about this is that the administration is arguing simultaneously that the data-mining was legal, so the telecoms did nothing wrong, and that they should be protected from being sued for doing something illegal.

[jackofallgeeks.livejournal.com]

I concur with everything said. I've been keeping fairly good track on the news in this area, though which law we're talking about (FISA, PAA, AUMF) and the exact details (ie, the citizenship bit) is sometimes hard for me to follow.

And yeah, I "like" how the Telecoms have done nothing wrong, but they need immunity. If they HAVEN'T done something wrong, they DON'T need immunity: if they HAVE, they ought to be punished.

I also "like" how Bush said (1)if the law expired it would cost American lives and, in the next breath practically, (2)he would (and did) veto any bill that excluded immunity. So Telecoms are more important than American lives.

I agree with you that the Administration's proverbial head should roll. But I don't think that's likely, no matter how this bill turns out. That being so, I think bestowing immunity to the Telecoms is a bad precedent to set, if for no other reason than it pretty clearly says, "you can break the law as long as the government approves; the government is above the law" and THAT I can not abide. If nothing else, I depend on legal protections from government specifically. anything that makes it less likely that I can defend myself from the government gets a black mark in my book.

And as a final point, yes, if the Telecoms get sued then they're unlikely to provide the same or similar service again. I see this as a major plus: I want the government to have to show compelling evidence for what they're doing, and if they have to convince the Telecom execs, then all the better I say.