Unconstitutional surveillance comes to an end

[bascule]

http://www.reuters.com/article/latestCrisis/idUSN16626583

 

At least temporarily...

 

Bush and Congress are at an impasse: Congress refuses to grant ex post facto immunity to the telcos who participated in unconstitutional surveillance of American communcations. Bush, for his part, has refused to sign any bill which does not grant immunity to the telcos for misdeeds past.

 

Bush insists: "House leaders chose politics over protecting the country -- and our country is at greater risk as a result."

 

Yet he is the major impedance to the bill: Congress is refusing to grant immunity to the telcos, and won't pass a bill out of a fear of a veto.

 

Maybe Bush should care more about "protecting the country" than sheltering the telcos from past misdeeds...

[iNow]

Ah... politics. If you disagree with what I say and do, you're helping the terrorists win. Can't fault that iron clad logic, now can we?

[Pangloss]

I guess this time they read the law. Wasn't that the complaint back in September, that they didnt realize they had passed a domestic surveillance authorization? (grin) Oh well, I guess it's easy to pick on congress.

 

I tend to agree with the OP, although I'm not sure I understand why the telcos are supposed to be liable here. Weren't they just doing what they were legally (at the time) ordered to do? Is this just a case of "victim" greed, or is there something more to it? Corporations aren't supposed to be our defense against despotism. They're supposed to obey the law, not stand up to it in violation of it.

[iNow]

I tend to agree with the OP, although I'm not sure I understand why the telcos are supposed to be liable here. Weren't they just doing what they were legally (at the time) ordered to do?

 

Since when are publically traded corporations subject to militaristic orders from the government? The commander in chief is not their CEO or board of directors...

[Saryctos]

Since when are publically traded corporations subject to militaristic orders from the government? The commander in chief is not their CEO or board of directors...

 

The government is just the biggest honey pot in all the land...Who would do what they wanted?

[Pangloss]

Since when are publically traded corporations subject to militaristic orders from the government? The commander in chief is not their CEO or board of directors...

 

Is that what happened? I thought congress passed a law, the president signed it, and the service providers were then legally obligated to carry it out. What would you expect them to do? Are you SURE you want corporations refusing to abide by the laws of this country? Isn't that what lefties are always saying is WRONG with this country -- corporations not abiding by the law?

 

Maybe I'm missing something here? Are we talking about surveillance that took place before the law was passed?

[iNow]

Are we talking about surveillance that took place before the law was passed?

 

Yes. That's how I interpret "retroactive" immunity. This makes the previous part of your post about "lefties" and corporate ethics rather moot.

[bascule]

Are you SURE you want corporations refusing to abide by the laws of this country? Isn't that what you lefties are always saying is WRONG with this country -- corporations not abiding by the law?

 

When Google refused a federal subpoena to turn over search results as part of the DOJ's war on pornography, I was certainly on their side. And the DOJ didn't pursue it... wonder why.

 

Maybe I'm missing something here? Are we talking about surveillance that took place before the law was passed?

 

That as well: AT&T voluntarily gave the NSA access to their telecommunication records without the need for any warrant, and all done under executive order, in violation of FISA. The Electronic Freedom Foundation have filed a class action lawsuit against AT&T for their compliance in the matter.

 

Bush is seeking immunity from just these sorts of lawsuits, and has vowed to veto any bill which does not include them.

[Pangloss]

Yes. That's how I interpret "retroactive" immunity. This makes the previous part of your post about "lefties" and corporate ethics rather moot.

 

(shrug) Okay. When I asked if they were just doing what they were legally obligated to do, it was an honest question, not a political statement, iNow.

 

So if the question is whether or not the telephone companies acted properly, what would determine whether these actions were appropriate or not? Your "militaristic orders from the government" notion (and its implication) is irrelevent. I agree that we don't want corporations acting under threat from the government, but I don't get the impression that was the case here -- I think it's intuitively obvious that they felt they were being given legal orders.

 

Ideological spin is unhelpful here. What needs to be determined is whether these corporations acted legally. If that's the case then it may well be necessary for a legal case to proceed, I agree. But if Democrats taint that with ABB or anti-corporation partisanship, we won't get our answer, and they won't win any open minds.

 

When Google refused a federal subpoena to turn over search results as part of the DOJ's war on pornography, I was certainly on their side. And the DOJ didn't pursue it... wonder why.

 

That seems like a valid point, I agree.

 

 

That as well: AT&T voluntarily gave the NSA access to their telecommunication records without the need for any warrant, and all done under executive order, in violation of FISA. The Electronic Freedom Foundation have filed a class action lawsuit against AT&T for their compliance in the matter.

 

Bush is seeking immunity from just these sorts of lawsuits, and has vowed to veto any bill which does not include them.

 

I'm afraid I have to agree with these points as well, much to my own chagrin. In fact I'm increasingly (over the space of the last few minutes) concerned about efforts to stop that. I was under the impression this was just a case of partisans going after corporations. But these strike me as important and relevent questions that should be addressed by a court.

 

Sorry I've been posting from an out-of-touch perspective on this, but I appreciate you and iNow answering my questions.

[iNow]

(shrug) Okay. When I asked if they were just doing what they were legally obligated to do, it was an honest question, not a political statement, iNow.

 

<...>

 

Ideological spin is unhelpful here.

Was it not you who brought into the discussion the term "lefties" and asking if I was sure that I "want corporations ignoring laws?"

 

I agree that we don't want corporations acting under threat from the government, but I don't get the impression that was the case here -- I think it's intuitively obvious that they felt they were being given legal orders.

Can you give any examples of "legal orders" that break existing law? This statement has me at quite a loss (this is not an attack, but a sincere request for clarification).

[Pangloss]

How do they know it breaks the law? Again, this isn't a statement, it's an honest question. I realize they should know their business, and that's what they have lawyers for, but is it possible they didn't know that an order from a Federal authority might put them in violation of the law? This is obviously not a question you or I can fully answer -- but it is a question that a judge can answer, which I sense is your point.

[bascule]

Here's an interesting article, from those liberal zealots over at the Washington Times:

 

http://washingtontimes.com/article/20080216/NATION/847451166/1001

 

Quoting a couple think tank analysts here, including one of the fine folks from the Cato Institute, and their take: FISA is sufficient.

 

Hopefully the Democrats won't back down on this... I liked this take from the Cato Institute's blog:

 

http://www.cato-at-liberty.org/2008/02/17/even-the-washington-times-says-bush-is-wrong-about-fisa/

 

Sometimes, good policy is good politics. I think this is one of those cases. If the House leadership capitulates to the president in the next few weeks, it will reinforce the impression that the president was right all along, and we really do need to sacrifice Americans’ privacy in order to fight terrorism. If, on the other hand, House Democrats refuse to enact legislation that undermines judicial oversight or the rule of law, it will cause journalists to write stories like this one, that dig deeper into the arguments of each side. Since in reality, the argument for eviscerating FISA is built on little more than distortions and alarmist rhetoric, that heightened scrutiny will only help those who believe in the rule of law.

[iNow]

How do they know it breaks the law? Again, this isn't a statement, it's an honest question. I realize they should know their business, and that's what they have lawyers for, but is it possible they didn't know that an order from a Federal authority might put them in violation of the law?

 

Maybe it's possible that they didn't know something broke the law, but as I understand it, lack of knowledge of the law doesn't prevent you from being punished for breaking it.

 

 

Last time I got pulled over, the whole, "I didn't realize this was only a 40 mph zone" didn't exactly exonerate me nor help my case when the officer wrote me a ticket for going 72.

 

 

If the company wishes to protect itself from prosecution and criminal charges, it is their job... it is their duty... it is their responsibility to know the law and ensure they don't break it. I'll tell you right now, we have entire departments and teams of people at my company devoted just to understanding global trade regulations so we don't get into trouble when shipping parts or sharing IP, and I'm sure that telecoms are no different in that regard.

 

 

It's clear, to me anyway, that the Bush admistration is fanning the flames of fear in the populace, using alarmist rhetoric to push through the re-enactment of a shitty bill, and is trying to protect people who broke the law in the first place via retroactive immunity.

 

Can anyone say, Scooter Libby?

 

 

Frankly, while I feel bad for many of the workers at the telecoms who had nothing to do with this error, it was an error, and failure to punish them sets a dangerous precendent which should not be set. This speaks to the root of a post you, Pangloss, made earlier where you wondered if we should not mandate that companies all must follow the rule of law and deal with the consequences when they do not.

 

Having read your last few posts, since being updated on the nature of the story, I'm confident that you agree.

[Phi for All]

It seems pretty clear to me that granting immunity to the telcos is unnecessary. If they acted within the law at the time they have nothing to fear. If they didn't then granting immunity is highly questionable and implies that Bush is somewhat sure there *were* punishable misdeeds. Judicial decision, not executive.

 

I hate seeing voided checks. They upset the balance.

[Mr Skeptic]

I suspect the reason that the Bush administration wants to grant them retroactive immunity is so that they will be very cooperative in the future. Next time the telcos are asked to break the law, they can consider that they will be somehow punished if they refuse, but granted retroactive immunity if they cooperate. So the laws will become meaningless.

[CPL.Luke]

if they reciieved any form of request from the government for records they will be able to get out of it, on entrapment.

 

this would be a case similar to a cop telling you to get into your car and drive off when your drunk and then pulling you over the next instant.

 

this is why cops don't sit outside bars waiting for a drunk to get in the car, the would have been legally obligated to stop the person before they got in the car.

[bascule]

I suspect the reason that the Bush administration wants to grant them retroactive immunity is so that they will be very cooperative in the future.

 

I suspect the reason the Bush Administration wants to grant them retroactive immunity is that a suit against the telcos would eventually wind up in the Supreme Court, at which point the legality of Bush's executive order and whether or not his orders (which he reauthorized dozens of times) broke FISA / the Fourth Amendment would come into question.

[ParanoiA]

Since when are publically traded corporations subject to militaristic orders from the government? The commander in chief is not their CEO or board of directors...

 

And publicly traded corporations are as likely to be misdirected as any citizen. I don't carry a law book with me for when I get pulled over, so I can check and be sure that each instruction I'm given is legal or not. And I gaurantee you these corporations at least DID consult their attorneys and still felt the need to cooperate.

 

The only point in punishing them is in support of the unsubstantiated belief that they are "in on it" with Bush and company - the big bad corporations and their big bad bully leader are out to get us and using terrorism as an excuse.

 

It couldn't possibly be that they, just like the liberal establishment, thought they were doing the right thing - and still do - that their intentions were benevolent - oh no, not that, they're all evil money grubbing bastards that used the opportunity to steal our freedoms for....uh....something....not really sure what they got out of it - but you know those bastards are evil and deserve it!

 

Sorry, I'm not buying it. The government is wrong, period. The innocent folks that followed their directions are not.

 

It seems pretty clear to me that granting immunity to the telcos is unnecessary. If they acted within the law at the time they have nothing to fear. If they didn't then granting immunity is highly questionable and implies that Bush is somewhat sure there *were* punishable misdeeds. Judicial decision' date=' not executive.

 

I hate seeing voided checks. They upset the balance. [/quote']

 

Or maybe, just maybe, they've been paying attention and they've noticed that americans are stupid. That we love to use hindsight to punish those who didn't have foresight. That we will retroactively punish them for a law that wasn't illegal when they were doing it. Because we have displayed a substantial contempt for big business and corporations. We're dramatically jaded and can't be trusted. They're doing the right thing.

[Phi for All]

Or maybe, just maybe, they've been paying attention and they've noticed that americans are stupid. That we love to use hindsight to punish those who didn't have foresight. That we will retroactively punish them for a law that wasn't illegal when they were doing it. Because we have displayed a substantial contempt for big business and corporations. We're dramatically jaded and can't be trusted. They're doing the right thing.

We may be stupid and not to be trusted but that's why we have a judicial branch. How do you think the public's stupidity would force a judge or jury to make a decision like punishing a telcom for obeying a (then) legal request? How would our stupidity hold up under repeated appeals?

 

I'm very concerned with allowing corporations to grow so big that they can manipulate legislation, the media and competitive technology to suit themselves, but I'd be the first one to defend them if they were working within the law. Granting immunity is not necessary if they were, and it's a favor they don't deserve if they weren't.

[ParanoiA]

We may be stupid and not to be trusted but that's why we have a judicial branch. How do you think the public's stupidity would force a judge or jury to make a decision like punishing a telcom for obeying a (then) legal request? How would our stupidity hold up under repeated appeals?

 

I'm very concerned with allowing corporations to grow so big that they can manipulate legislation, the media and competitive technology to suit themselves, but I'd be the first one to defend them if they were working within the law. Granting immunity is not necessary if they were, and it's a favor they don't deserve if they weren't.

 

The problems is, what are you really punishing them for? What did they get out of it? It's not like some malicious plot to victimize americans and they profited from it. They didn't get jack from it.

 

See, I'm the guy that just can't punish people for freaking out and going too far in a crisis. I can say they're wrong. I can call them out and show them how they abandonded principle out of fear and so forth. But punish? Why?

 

Even if they broke the law, I still can't in good conscience, punish them for doing what they believed was the right thing to do in this crisis - what they believed was protecting american citizens. They screwed up and let fear override their better judgement - under the misguided belief they were protecting us. Why do they deserve to be punished for being over-protective?

 

The court will not split hairs here. If a law was broken, they would be punished. Even if that law appeared to jeopardize the safety of american lives. I'm not looking for a population of mindless robots that follow the law even in the face of seeming annihilation - right or wrong, I'm more partial to a population that questions its laws especially in the face of catastrophe.

[iNow]

The problems is, what are you really punishing them for? What did they get out of it? It's not like some malicious plot to victimize americans and they profited from it. They didn't get jack from it.

The intent is not relevant if the existing law was broken, which, if retroactive immunity is being proposed, it was.

 

 

But punish? Why?

How else do you enforce a law? You are basically arguing that laws are meaningless and open to subjective interpretation. I appreciate the spirit of your post, but if the law can be subjectively non-applied when anyone pleases, then it's no longer a law. It would become a mere request or suggestion.

 

 

They screwed up and let fear override their better judgement - under the misguided belief they were protecting us. Why do they deserve to be punished for being over-protective?

Again, intent matters not. It's too subjective, and the law is clear. If you break it, you are at fault.

 

 

Even if that law appeared to jeopardize the safety of american lives. I'm not looking for a population of mindless robots that follow the law even in the face of seeming annihilation - right or wrong, I'm more partial to a population that questions its laws especially in the face of catastrophe.

 

Questioning of laws is more about changing and improving them than it is about ignoring those currently in place.

 

Also, we didn't face annihilation. That's excellent rhetoric, but it's not the case here.

 

The existing FISA laws have worked successfully for years, and will continue to work successfully when this "Protect America Act" expires. This wasn't Jack Bauer and 24 where they had 1 day to find a nuke, and the issues being discussed regard what the telecoms did with our information and how they survailled us before it was legal for them to do so without a warrant.

[Phi for All]

The problems is, what are you really punishing them for? What did they get out of it? It's not like some malicious plot to victimize americans and they profited from it. They didn't get jack from it.

How does a person profit from getting so angry they accidentally kill another person? Is it still a crime if they really gain no benefit other than venting their wrath?

See, I'm the guy that just can't punish people for freaking out and going too far in a crisis. I can say they're wrong. I can call them out and show them how they abandonded principle out of fear and so forth. But punish? Why?

It's not just individuals at that level. The immense corporations involved have teams of attorneys combing over every document that comes their way. Why punish them? To make them and everyone else think twice before abandoning their legal principles in the future.

Even if they broke the law, I still can't in good conscience, punish them for doing what they believed was the right thing to do in this crisis - what they believed was protecting american citizens. They screwed up and let fear override their better judgement - under the misguided belief they were protecting us. Why do they deserve to be punished for being over-protective?

So if I see someone walk into a crowded mall and something leads me to believe they are carrying a bomb and I use lethal force to protect the lives of those around me, and it turns out later that it was just a bulky sweater, are you going to let me go free because I screwed up and let fear override my better judgment? Why do I deserve to be punished for being over-protective? If it turns out later that I knew exactly what I was doing, would you be wrong for having granted me immunity?

The court will not split hairs here. If a law was broken, they would be punished. Even if that law appeared to jeopardize the safety of american lives. I'm not looking for a population of mindless robots that follow the law even in the face of seeming annihilation - right or wrong, I'm more partial to a population that questions its laws especially in the face of catastrophe.

I'm all for questioning laws. But while they are in effect they need to be obeyed by everyone who isn't prepared to face the consequences for breaking them.

[ParanoiA]

It's not just individuals at that level. The immense corporations involved have teams of attorneys combing over every document that comes their way. Why punish them? To make them and everyone else think twice before abandoning their legal principles in the future.

 

Like when peope refuse to give cpr because they might get sued or criminally charged if they screw up...yeah, great idea. I don't know about you, but I'm not real impressed with a conscience that values litigious harmony over perceived human need. That's my chosen principle and I'll suffer it.

 

Remember, we're talking about requests from the government, the federal authority, in the exigence of a declared war. Not to mention the obvious security interest telecomm companies have in participating in the first place - they are potential targets themselves. You'd be surprised how many attempts are made to break into telecomm networks.

 

So if I see someone walk into a crowded mall and something leads me to believe they are carrying a bomb and I use lethal force to protect the lives of those around me, and it turns out later that it was just a bulky sweater, are you going to let me go free because I screwed up and let fear override my better judgment? Why do I deserve to be punished for being over-protective? If it turns out later that I knew exactly what I was doing, would you be wrong for having granted me immunity?

 

Your analogy doesn't work unless you add some bit about the police telling you the guy has a bomb and then compelling your participation. And then yes, I'd grant you immunity for being misguided by the police. The police would be punished. In my world anyway...

 

The intent is not relevant if the existing law was broken, which, if retroactive immunity is being proposed, it was.

 

Intent matters to me ethically though, which is my point. I can't ethically level such animosity at these companies for participating in a wartime effort.

 

Questioning of laws is more about changing and improving them than it is about ignoring those currently in place.

 

So Frederick Douglass was wrong for trying to escape slavery? Blind allegiance is no better than whimsical enforcement. I advocate neither, rather that we see the sense in obvious well intentioned public cooperation with federal authorities on matters made important by the american people and their media machine. Why punish that public unless you already have issues with that particular public?

[iNow]

So Frederick Douglass was wrong for trying to escape slavery? Blind allegiance is no better than whimsical enforcement. I advocate neither, rather that we see the sense in obvious well intentioned public cooperation with federal authorities on matters made important by the american people and their media machine.

And here, your analogy doesn't work.

 

Fredrick Douglass was breaking a law which kept him a slave. He was escaping captivity in search of his personal freedom. The law he broke was equivalent to stealing since he was treated by the law as private property of the slave owner, and he was essentially stealing himself from the plantation. He was not exactly telling the slave owners where all of the escaped slaves were living after having an implicit contract with those escaped slaves to protect their whereabouts, which would be a closer analogy to the situation under discussion.

 

I do personally believe that the laws may need updating, but I'm not exactly a big fan of my calls and my emails and my text messages being subject to warrantless viewing and distribution.

 

If you think I'm doing something bad, and you need to find out what, go get you a warrant before you start taking from me my private and protected communications. That's the law, and that's not what the telecoms did. They just said, "Oh, you want this data which is protected by contract with each of our customers? Sure, you're the government, you couldn't possibly be doing anything wrong with it. Here ya go!"

[ParanoiA]

Fair enough, but I never said I supported warrantless wire tapping and I remain strongly against government or private intrusion, particularly when it's fed by fear. That's a word I feel compelled to level at the conservatives on these subjects, by the way. They've allowed fear to corrupt their principles.