Our Congress Has Failed Us: Gives In On Telecom Immunity

from the no-checks,-no-balances dept

We mentioned the rumored “compromise” bill concerning telecom immunity earlier this week, and now it appears that leaders of both the House and the Senate have agreed to wording in the bill which will be brought to the floor today. From the sound of it, it’s exactly what we feared: Congress has effectively given in to the administration, allowing it to grant immunity to any telco. Apparently, all that talk about not allowing the worst of this bill to go through was just talk. It’s difficult to know where to begin in reviewing this “deal.” It’s hardly a compromise — it’s a get out of jail free card.

To summarize: it appears quite likely that various telcos broke a very clear law in providing wiretaps to the government without a warrant (as required under FISA). Despite what you might hear, this has nothing to do with emergency wiretaps where there wasn’t time to go the warrants. Under existing law, in such cases, it’s possible to get the wiretap and get the warrant within a few days. However, in many cases, it appears no warrant was ever sought. The fact that the telcos approved these wiretaps is almost certainly against the law — and it seems that it should obviously be tried in a court of law to determine that specifically.

However, under this new law, Congress has basically given the President (who ordered the wiretaps in the first place, and doesn’t want these trials to go forward since they may reveal that he broke the law too) “get out of jail free” cards he can hand to each telco, saying that since he told them that the wiretaps were legal, the lawsuits no longer can proceed. Basically, this puts the President above the law, lets him avoid trials that might prove that his activities broke the law and to reward telcos who broke the law at his command.

Even worse, the bill basically grants the administration the right to keep on spying without getting warrants. Intelligence agencies will be able to demand various communications providers hand over communications without court approval and without naming the target, so long as they claim that the communications are “reasonably believed to involve a non-American who is outside the country.” Seems rather wide open for abuse doesn’t it?

This whole thing is fairly stunning, considering that it’s an opposition Congress facing off against a weak administration. Yet Congress basically gave the President exactly what he wanted, and made a mockery of the checks and balances our government was supposed to include. This is allowing a President to say the law is whatever he says is the law, while destroying basic due process and civil liberties along the way.

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Comments on “Our Congress Has Failed Us: Gives In On Telecom Immunity”

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77 Comments
Willton says:

Re: Re:

And what would you have the 3rd branch do? What exactly is unconstitutional about this law? Sure, it’s a bad law, but the Courts aren’t in the business of disposing of laws that they don’t like.

This is the problem with relying on the Supreme Court to fix everything. Of all the branches of government, the judiciary is probably the least responsive to the people. If we want anything to get done, we have to make Congress accountable.

KeithJM says:

Re: Re: Re:

What the 3rd branch could do is say that Congress doesn’t have the authority to exempt the executive branch from the constitution. I’m not clear on retroactively exempting someone from a law, either. Ironically, the President has that power but probably wouldn’t use it here for political reasons.

chris (profile) says:

Re: Re: Re:2 Re:

What about the “ex post facto” argument? Congress can’t make laws that put people in jeopardy after the fact, why can’t the same be said for “retroactive immunity”?

you can only claim ex post facto if it was legal at the time the act was committed.

these lawsuits by the EFF and the ACLU are because it WAS illegal at the time the act was committed. before this bill, you couldn’t wiretap without a warrant, that was illegal.

if it was legal at the time, why do they now need retroactive immunity?

Thane says:

Re: Re: Re:

It is a violation of the 4th amendment and I think SCOTUS will find such when a case comes before them.

You can also bet that inside this bill is something that the President really doesn’t like. It’s a way to get IT passed by giving him something he wants. I don’t know what it is but I bet it’s in there….

Gemsbok says:

Why the Bush bashing?

I do not understand the Bush-bashing here. I know that 99.9% of TechDirt readers hate Bush, but here it is quite clearly the Democrat controlled congress is at fault.

I have found this quite typical since I came to the States. The Republicans make a law that they feel is for the good of the people (useless bunch) and then the left ravages this new law on every talk show they can possible book them selves on. The moment it gets to repealing this new law, they suddenly find it in their hearts to take a different look at it. In this case they suddenly see that this is an AWESOME law that they can use next year when Obama becomes President to keep the populace at bay.

Conclusion (This pertains to politicians, not normal people):
Republicans – Yellow-bellied cowards
Democrats – Scum of the earth

Anonymous Coward says:

Re: Why the Bush bashing?

I do wholeheartedly agree with the first half of your opening sentence. You truly and demonstrably don’t understand.

I’m not quite sure what country you left to come here, but perhaps you should study a little history and Constitutional policy before you pretend your opinion has any merit or basis. However, welcome to America where you have the Freedom to say all the stupid things you wish. Just don’t expect anyone but you to take you seriously.

Anonymous Coward says:

Re: Re: Why the Bush bashing?

Whoa, what did he say that was wrong?

The Democrat congress promised to stop the Republican executive branch and has done exactly squat to follow up on that…More broken promises from elected crooks. Why can’t people accept that we need to get rid of just about everyone in Congress and elect different people president if we expect to get changes?

Both parties are just that – fat cat, money grubbing parties.

pawpaw says:

Re: Re: Why the Bush bashing?

No he did get it right !!! Republicans sre the cowards and Democrats are the scum of the earth . why do you think we are dependent on others for oil? Congress has know since the 70’s that this was a problem but under both parties nothing has been done !!! a lot of talk but nothing to fix the problem by both parties !!

Z says:

Amendment 4 – Search and Seizure. Ratified 12/15/1791.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Nasch says:

Re: Re:

When you help the government you should not have to defend yourself.

So you think if a corporation illegally aids the government in violating US citizens’ Constitutional rights, they should be immune from any punishment? In the name of all that is holy, why? Why would we ever want to encourage such a thing?

By “we” of course, I mean the people. It’s obvious why Bush wants it. I’m also a bit baffled about why Congress did this though, unless it really is as simple as having been bought out by the telecoms.

DF says:

Re: Re: Re:

“I’m also a bit baffled about why Congress did this though, unless it really is as simple as having been bought out by the telecoms.”

Congress did this because the government and the telecoms are trying to keep us safe. Believe it or not, everything is not about money or a conspiracy agains us.

If you think the government is listening to your calls – get a scrambler! (that’s a joke)

Mike (profile) says:

Re: Re: Re: Re:

Congress did this because the government and the telecoms are trying to keep us safe.

Um. No, they did not. If they wanted to keep us safe, they could have just followed the law, and received the warrant they needed under the law.

Believe it or not, everything is not about money or a conspiracy agains us.

And, believe it or not, not everything the government does is legal. That’s why we have checks and balances.

Anonymous Coward says:

Re: Re:

I am so happy that lawyers do not get to waste more corporate shareholder’s money by forcing them to defend themselves from lawsuits of this kind. When you help the government you should not have to defend yourself.

So let me get this straight, you think that corrupt corporations that commit illegal acts to help corrupt politicians should be exempt from prosecution? I beg to differ.

chris (profile) says:

Re: Funny

if telcos spy for their own nefarious purposes that one thing. it’s bad, but it’s not 1984 bad.

since they are spying for the government’s nefarious purposes, it’s a different issue. that’s the definition of 1984 bad.

also, the telcos are a monopoly in pretty much every market in the country, so there isn’t much of a market to be forceful.

Anonymous Coward says:

…— That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness….

Overcast says:

I do not understand the Bush-bashing here. I know that 99.9% of TechDirt readers hate Bush, but here it is quite clearly the Democrat controlled congress is at fault.

I can’t even understand why people really think the parties are different? It isn’t obvious to most people they are on the same side? Us vs. them?

Seriously people – they are ALL up there laughing at everyone of us. It’s the same people in office all the time – they just change positions like musical chairs.

The idea that the parties are ‘opposed’ to each other is naive anymore.

Their actions speak louder than words – and it’s obvious when looking at what they do – they are on the same side of the fence.

Anonymous Coward says:

… That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness …

po says:

a few thoughts

If you want the Telecos to become an arm of the government, federalize / nationalize them. Otherwise, get a warrant.

This bill is “necessary” because Bush and his people were asleep at the wheel in 2001 and failed to take the chatter seriously or follow up in the myriad of lawful ways they could have, and thereby possibly disrupted or thwarted the WTC attacks. Rather than play catch-up the legal way (because, really they didn’t know what the they were doing or who they were after), the resorted to illegal methods. They told some in Congress about them, including some Democrats. Because of their incompetence, our Congress is now prepared to sell out the Constitution.

Excellent work, guys and gals. Didn’t get much else out of the 2006 Democratic leadership. Least you protected W’s backside.

Anonymous Coward says:

Not just live wiretaps?

Throughout the bill, it refers to being able to capture data if the target is believed to be out of the country “at the time of acquisition”. It doesn’t say “at the time that the call or data is transmitted”. Does that mean that mean that the government can ‘acquire’ a target’s past emails the moment they leave the country?

All they need to do now is get the telcos to handle data retention (by paying them, or forcing them with new laws), and all past data of anyone who steps outside our border becomes fair game.

deadzone (profile) says:

Not a surprise really

I just knew that at some point the Dems were going to give in and give the Republicans and the Administration what they wanted. It sure was shocking to see them stand up and fight for a change the last couple of times the FISA issue has come up. 2 small victories are better than nothing right?

The reality is this now though:

1.Bush and the Telecoms broke the law and now we will NEVER be able to prove this and hold them accountable.

2. The FISA bill that is being passed RIGHT NOW is the worst one yet as they still get to spy on Americans without a warrant and without a reason with virtual assurance that nothing can be changed about the bill by the next administration and congress for at least 4 years.

3. Democrats? Republicans? Other than the name, there is not difference between them. It is clear that neither give a rat’s ass about the American People who elect them to office supposedly to represent us. They have been bought by the lobbying efforts of our esteemed Corporate Overlords in the name of Capitalism.

4. The Constitution should just be done away with since we don’t seem to be using it much anymore. We can just make the rules up as we go along like we have been doing for many, many, years now anyway. Really, I don’t think we sill notice that big of a difference anyway because we have been basically doing without for a long time from what I can tell.

5. Why Vote? It doesn’t matter anyway. Whoever is in office will either be blocked at every turn or become corrupt just like everyone else. Same for Congress. What do any of them care anyway – the perks don’t end when you leave – some say it gets even better! So what’s the incentive to represent the people and govern the people when you don’t really care and there are no repercussions? There is none.

Sorry, Mr. Rambly McRant signing off.

Signed,

A disillusioned and thoroughly fed-up American Citizen who believes that the principles that the United States of American was built upon are no more.

JJ says:

I couldn't disagree more!

I think this is absolutely appropriate. If the FBI comes into my house and forces me to do something illegal that infringes on somebody else’s rights, I don’t think that person should be allowed to sue me for it. They should sue the FBI. I think I should have immunity when acting under extreme duress, especially under pressure or even threats from the federal government.

When the government infringes on our rights, they should be held responsible, not the people or companies they strong-armed into helping them.

Without this new law, the telcos would be in a lose-lose situation — help the government run wiretaps and get sued, or refuse to help and be punished by the government. (I’m sure that the government wouldn’t hesitate to destroy a telco that refused to comply.)

Now that this law has been passed, blame must be properly placed on the federal government, on Bush and his policies, rather than letting them off and going after the easy target of the telcos.

Abdul says:

Why are you Surprised???

I don’t think this should surprise us because this congress has certainly show signs that it can deliver on its 2006 promise to deliver change. Where is the muscle or grit they’ve shown since 2006? And this deal is just a confirmation that they’ve lost sight of what they are suppose to do: Warrantless Surveillance: The Worst is Yet to come ( : http://www.internetevolution.com/author.asp?section_id=494&doc_id=143396&F_src=flftwo)

tim says:

More at work here

This has a lot less to do with granting telcos immunity than it does with maintaining the secrecy of government surveillance programs. See… using this thing called checks and balances the Judicial system can declare whole swaths of government programs and legislation unconstitutional thus literally stomping them out of existence overnight.

By granting immunity they keep these cases out of the courts which serves two purposes.
1. Saves government surveillance programs from having to face the constitutional litmus test by preventing lawsuits.
2. Prevents the public from having access to more information through the subpoena process about the breadth of these programs.

Derek Kerton (profile) says:

Whom To Sue

RE #39
“I think this is absolutely appropriate. If the FBI comes into my house and forces me to do something illegal that infringes on somebody else’s rights, I don’t think that person should be allowed to sue me for it. They should sue the FBI. I think I should have immunity when acting under extreme duress, especially under pressure or even threats from the federal government.”

NO, you should be sued. Americans whose right to privacy was violated should sue the telco that violated that rigth. Your defense should include that you were told it was legal, and given assurances from the White House. In your defense, you might then provide proof of duress from the White House.

It is exactly this chain of events that the White House is seeking to avoid. They do not want the telcos to produce the proof that they were both under duress, and/or misinformed by the Administration. Because in the game of “pass the buck” the telcos would quickly pass it upstream to the Oval office. Next step would be lawsuits against those responsible.

I, too, don’t understand Congress’ compliance.

Mark (profile) says:

Not so hard to understand...

I vehemently oppose this bill, but the fact that Congress, and, specifically, the Democratic majority knuckled under to the administration is not so hard to understand.

If the Democrats has continued to fight the administration on this, the Republicans would have used it, as they always do, to beat the Dems about the head with the “weak on terrorism” club. The fact is, during this election cycle the whole Republican appeal can be boiled down to “Vote Democratic and Die”. Ridiculous? Of course, but just the sort of hyperbolic rhetoric that unfortunately tends to appeal to a rather large swath of intellectually-challenged electorate. Fear is a powerful weapon.

By going along, the Dems hope to blunt any political advantage Bush and his fellows could have gotten out of this. It’s sad that politicians these days are willing to sell our liberties down the river in order to gain a small political advantage, and it’s equally sad that voters in this country seem content to let it happen, but that’s the reality…

Anonymous Cowherd (profile) says:

Re: Not so hard to understand...

“By going along, the Dems hope to blunt any political advantage Bush and his fellows could have gotten out of this.”

Or perhaps by going along, the Dems hope to have all that power vested in *their own* presidential candidate someday…

Even so … 293-192? We can only hope that the Senate lives up to its role of giving crap like this a “sober second look”…

They need to completely outlaw donating to political parties and candidates. Instead, anyone who presents a signed petition with enough names to suggest that they have enough voter interest/a big enough party to stand a chance should be eligible to run a campaign at taxpayer expense, up to a fair and reasonable limit that is the same for all comers. Said campaign funds being administered by an independent and nonpartisan branch of the government, of course, one subjected to heavy watchdogging, much as the administration of the elections themselves is subject to heavy watchdogging.

Raise taxes in the upper brackets. That will take the money mainly from the same people that will no longer be spending millions donating to campaigns, so they end up no worse off financially than now, but lose the ability to exert undue political influence.

Then we once more have a government “by the people, for the people”.

But if the Senate passes this crap, watch for the Supreme Court’s reaction. If they do nothing, move to Canada. Canada still has a functional Charter of Rights and Freedoms, last I checked; they didn’t trash their version of the first amendment after 9/11 or their fourth after Napster and 9/11. 😛

ChurchHatesTucker (user link) says:

Re: Not so hard to understand...

If the Democrats has continued to fight the administration on this, the Republicans would have used it, as they always do, to beat the Dems about the head with the “weak on terrorism” club.

Close. The Dems are worried that it will come out that they were complicit in this, thus negating their advantage.

Eric the Grey says:

Personally...

Hopefully the Supreme Court will overturn this as unconstitutional and allow the legal cases to go through.

I also believe that everybody who supported this steaming pile needs to be held as an accessory and punished appropriately.

No wonder I no longer have any respect for my country’s leaders. NONE of them seem to be worth it.

EtG

tony41454 (user link) says:

Our Congress Has Failed Us: Gives In On Telecom Immunity

It seems to me that if the President and Congress both agree on this, maybe they know something that we don’t? Like, this is a very good way to protect against terrorists using our phone systems and a very good way to find them and track them down. (This bill only pertains to INTERNATIONAL calls, not domestic–they still have to get warrants to tap domestic lines).

WTF Dept says:

Re: Our Congress Has Failed Us: Gives In On Telecom Immunity

As I recall, there was an acceptable practice in place already that would address your concern. A wiretap could take place and then get a warrant at a later date. This piece of treachery removes the requirement that the tap ever be justified. There is no accountability, what could possibly go wrong ?

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