They're trying an act of congress to stop us suing AT&T

Submitted by brad on Mon, 2007-12-17 01:32
Topic: 
Privacy

Update: Harry Reid has delayed the bill until 2008. Let's hope we can keep the immunity out when it returns again next year. Let your senators know.

Usually, when you start a legal action, you consider the merits and go ahead when you have a good case. If your case is just, you should win.

You don't usually expect your case to cause the President to personally lobby congress to grant a retroactive immunity to the parties who broke the law. You don't usually expect to have them try to toss out your case by having an act of congress grant amnesty to those you are suing.

But this could happen tomorrow, in our battle against AT&T for letting the NSA wiretap without warrants. The house passed a bill without the amnesty the President wanted, and the Senate had two bills, but right now they've picked the bad one, with the amnesty, and powerful forces are pushing to make it go through quickly, and then add the amnesty to the house bill.

Senator Chris Dodd is going to show some great spine tomorrow and try to filibuster the bill and trigger debate. However, pro-amnesty forces are gathering the 60 senate votes needed to shut down the bill and grant amnesty. Your senator is probably among them. One of my senators, Dianne Feinstein, is among the worst. But it's not too late to call your own senator and tell them not to engage in this travesty of justice.

In Star Wars: The Phantom Menace, Darth Sidious, a.k.a. Emperor Palpatine, tells his puppet trade federation to invade Naboo.

"But my lord, is that legal?" asks the trader.

"I will make it legal" says Lord Sidious.

That's the precedent they are setting, as I've written before. Do what the President says, ignore checks and balances because he can make it legal, retroactively. It's a sad say for the rule of law.

Do me a favour and call your senator and let them know what you think about this issue. Let them know their constituents will remember this action, and see if you can turn the tide.

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Comments

Genewitch

Mon, 2007-12-17 07:17

Hey Brad, just wanted to thank you for your awesome "10 myths of copyright" thing. I've attended a few hosted seminars in the arena of copyrighting music and stuff, it's funny to see so many of the myths faithfully reproduced and spouted as truth. my favorite one (which i don't think you mentioned) is "mailing yourself a copy and leaving it unopened establishes legal copyright" which has no precedent in the US. I'm gunna bookmark your pages and browse through them when Skeptico et al get too depressing for me. :-)

So as a composer it was nice to hear again that my work is copyrighted the second i write it, and no one can take it away from me (unless i give it away). Thanks!

PS sorry for the off topic comment... I don't want to get into the wielding of the sword of Odin that the current administration thinks they can get away with (and do. ) also, did you read about HR 847? it's good to see the boys and girls on capitol hill have our best interests at heart all the time.

I see you're in california. I believe Dianne voted "aye" on HR 847. I know boxer did. so did pelosi. /sigh. (three representatives from california - all democrats - voted no, though)

Georg Felis

Tue, 2007-12-18 11:57

Ok, try to imagine the flip side of this. You run a large telecommunication company that tracks what communications go where for accounting purposes (i.e. that’s how you bill people). On 9/11/01, Terrorists hijack airplanes and manage to kill thousands of Americans within a few hours. The Government comes to your company and asks if they may have a record of foreign calls over time period X, so they might be able to “connect the dots”, possibly averting another attack and saving thousands of lives. You:

A) Refuse, thereby keeping your company from being sued into bankruptcy. If there are any more attacks, hopefully they are not using your product or the victims will sue you too.
B) Agree, but only if the Government produces a subpoena for each and every one of the millions of records they are requesting. (all signed in triplicate)
C) Refuse and immediately go public with a full page ad in the New York Times, detailing how the Government is attempting to get international phone records from your company, and decrying this prying into the privacy between your customers and whatever suspicious character they were calling in the Middle East.
D) Quietly accede to the request, depending on the assurances of the Government that the request is legal, and keeping it from becoming public, and therefore keeping the Terrorists from knowing they are being tracked. Until it is too late for them.

This is not funny. This is serious. The Government has been opening foreign mail since the days of Ben Franklin in order to keep our people safe. You can yell and scream about it all you want, but I am quite happy that the phone companies in question complied with the Governments request to help track terrorism suspects, and also quite happy that the Congress has (finally) seen fit to immunize them against the horde of screaming trial lawyers demanding their blood.

The Dems expect us to take them seriously on the subject of National Security. That’s funny.

brad

Tue, 2007-12-18 16:57

What you do, and what the telcos should have done, was follow the law, and tell the President he doesn't have the power to rewrite it, and face the penalties the law specifies for failing to tell the President this if you don't. Tell him that he should ask congress to rewrite it if need be.

But the law does allow wiretaps without warrants for a limited time to deal with emergencies. It does provide immunity for the phone companies if they follow the procedures.

So you don't quite have to do (A). You can (you employ more lawyers than most government departments) inform the government of the proper compliance procedures for doing a tap without a warrant.

As for B, the point of the law is the government is supposed to convince a judge (even after the fact in the emergency case,) not you. It's not your call. It's a judge's call. Do you not think judges are able to do this sort of analysis? That they don't understand emergencies and national security? We're talking about actions here where the judges, steeped in the law and authorized under the law, have said no, or are so likely to say no that the President is afraid to ask them -- even after the fact. How is it your place, as a phone company, to say yes, when the judge would say no?

For classified work, you can't do C, but you may be able to reveal general terms. And yes, if the government is violating the law, we depend on whistleblowers to let the public, congress and the courts know about it.

I can see how some might feel that "D" is the choice -- but for 5 years? Even if you picked D on Sept 12, 2001, you should have immediately put on the pressure to deal with the legality of this. The courts should learn what's going on, to decide if you did the right thing. You might even ask the government to indemnify you for violating the law for a few weeks until congress and the courts can be brought in on it, to take out of your hands this decision which should never have been put in your hands. As far as I know this didn't happen though of course I am no privy to private or classified discussions.

The point is not how to deal with emergencies and terrorists. The point is the rule of law, especially the rule of law around protecting civil rights. A system was created by congress for just such a problem, with a set of rules, and a panel of judges. All with people who are sworn to uphold the constitution and law. As a phone company, you're not so sworn. You are supposed to punt the problem to the courts or congress. Their job is to act as checks and balances on abuse of power by the other branches. Congress laid out exactly what a phone company is to do if it gets an illegal order from the NSA. If that was wrong, then within a few days, congress should have been asked to address it.

Now frankly, I don't think it was wrong the way you do. There is a long history against "dragnet" surveillance in our jurisprudence, and for good reason. And for reasons that actually keep getting better, too. The law is clear. Companies are not supposed to hand over all the data so that the feds can sort through it to find what they want, promising not to look at the private communications of innocents. Instead, the companies are supposed to do the sorting, and hand over the records of the people the government has convinced a judge need surveillance.

Of course, giving the government more power here would let it do more. But that's not the question in a free society. In a free society you deliberately cripple the power of the government to do this sort of stuff, knowing it will make it harder for them to do their jobs, knowing it will mean some criminals escape or go undetected. That's not a bug, that's part of the design. We can debate how much to cripple, and what the risks to freedom are for not crippling, as well as the risks to security of crippling. But that's for congress and the public to do. It is not something that can be done in secret in a free nation.

When the founders of the USA said "liberty or death" they meant it. There were liberties they would not give up, yes, even if it meant more innocent people would die.

InSunnyvale

Tue, 2007-12-18 17:25

You mention 9/11 and foreign surveillance. Both are a misdirection, given that

1. The government started asking phone companies for unlimited warrantless access to their data in the spring of 2001.
2. The government was asking, at times, for access to equipment that handles purely or predominantly domestic calls.

Craig

Sun, 2007-12-23 14:54

My feeling is this: You either love the Constitution which is the basis of our government and the American "way of life," or you hate America and you should leave and go live somewhere where the interests of big business and Big Brother trump individual rights and freedoms (oops, I guess that would be the America we've become). It's funny, I've never seen so many right wingers in a cowardly lemming rush to give away their own liberties and live in a virtual police state while supporting an expensive and unnecessary war to promote these same liberties in Iraq, all while pretending to love America more than anybody else.

When you give away your rights, you don't get them back. So no telecom immunity! If they broke the law, maybe next time they'll think twice before helping the government to spy on us illegally.

Georg Felis

Wed, 2008-02-13 10:08

Let me try to make my point, now that the Democratic led Congress has seen the light and is agreeing with me.

- The US has the right to conduct wiretaps on international Foreign-to-Foreign calls/emails/communications for foreign intelligence purposes. Nobody rational denies this, we’ve been doing it from the era of Benjamin Franklin and the Committee of Secret Correspondence. Even Harry Stimsom who was famously quoted “Gentlemen do not read each other’s mail” eventually became Secretary of War in WWII, and relied extensively on eavesdropping and decryption of foreign communications (Purple and ULTRA). And we are not the only nation that does this. Every country of any size has a “cabinet noirs” for the purpose of identifying threats against themselves and other nations, and they trade information on a daily basis on the various terrorists, splinter groups, nuts and wackos who may be plotting and planning death and destruction.

- In today’s modern telecommunications environment, an email/call between two people in the Middle East can go thru a US computerized switching station. In order for the US to conduct a wiretap, they need to be able to work with the telecom companies in order to make the necessary reprogramming and processes so that A) we can eavesdrop on the calls we need to and B) unauthorized eavesdropping is not allowed.

- The FISA courts prompted chaos when they recently decided that any Foreign-to-Foreign communications that happened to touch any US equipment required a warrant to be tapped. The NSA tracks millions of foreign calls/emails with keyword searches, out of which it extracts hundreds of “potential” hits, which it refines down to a dozen or so hits that might have some sort of validity every day. The FISA ruling (which President Bush promptly countered with an Executive Order, and then proceeded to quite rightly propose additional legislation to permanently fix the problem) was wrong. It would have forced the NSA to go thru the warrant process for every call/email it checked, regardless of origin or destination.

- When Bush requested assistance from the telecoms, it was given in good faith, with the assumption that they would not be sued for doing so. There are many precedents for this, from Good Sam laws and up. A quick analogy is if the police request to put an officer in your business to watch a neighboring criminal business, and that business sues you for violating their privacy, then you are protected. The Supreme Court agreed with Bush, the NY Times agreed with Bush (although in a sideways fashion), and many of the Democrats in Congress agree with Bush ( http://www.nytimes.com/2008/02/12/washington/12cnd-fisa.html?_r=2&hp&oref=slogin&oref=slogin )

- You have the right to disagree. You have the right to complain about it. You have the right to go to Berkley, paint yourself purple, and stand on the corner with a badly written sign screaming (fill in most common left-wing insult here). That is one of the great things about this nation. But you are wrong. Every day, people go to work across this world to try to prevent another 9/11, on larger and smaller scales. At the same time, a much smaller group of people go to work, building bombs and making plans. I support that first group, working within a set of common sense guidelines and within the law. I know you do too, you just disagree with me on where the law draws a line.

Andrew Yu-Jen Wang

Mon, 2009-03-09 19:12

Speaking of the U.S. Congress:

The U.S. Congress does not like George W. Bush—Bush committed too many crimes.

George W. Bush committed hate crimes of epic proportions and with the stench of terrorism (indicated in my blog).

George W. Bush did in fact commit innumerable hate crimes.

And I do solemnly swear by Almighty God that George W. Bush committed other hate crimes of epic proportions and with the stench of terrorism which I am not at liberty to mention.

Many people know what Bush did.

And many people will know what Bush did—even to the end of the world.

Bush was absolute evil.

Bush is now like a fugitive from justice.

Bush is a psychological prisoner.

Bush has a lot to worry about.

Bush can technically be prosecuted for hate crimes at any time.

In any case, Bush will go down in history in infamy.

Submitted by Andrew Yu-Jen Wang
B.S., Summa Cum Laude, 1996
Messiah College, Grantham, PA
Lower Merion High School, Ardmore, PA, 1993

“GEORGE W. BUSH IS THE WORST PRESIDENT IN U.S. HISTORY” BLOG OF ANDREW YU-JEN WANG
_________________
I am not sure where I had read it before, but anyway, it goes kind of like this: “If only it were possible to ban invention that bottled up memories so they never got stale and faded.” Oh wait—off the top of my head—I think the quotation came from my Lower Merion High School yearbook.

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