EFF perspectives on retroactive immunity for telcos

[bascule]

Congress just approved retroactive immunity for the wiretapping programs that several telcos participated in:

http://www.reuters.com/article/domes...00975320080709

To anyone with any sort of EFF connections, does this mark the end of the case? I'm a bit unclear on all the Constitutional laws involved, but apparently SCOTUS ruled the Constitutional prohibitions of ex post facto laws only apply to criminal laws and not civil ones?

Is there still a case here, or does this mark the end of the road?

[Voltage Spike]

Re: EFF perspectives on retroactive immunity for telcos

I'd like to first state that I haven't been following this situation closely so take anything I say with a grain of salt.

To anyone with any sort of EFF connections, does this mark the end of the case? I'm a bit unclear on all the Constitutional laws involved, but apparently SCOTUS ruled the Constitutional prohibitions of ex post facto laws only apply to criminal laws and not civil ones?

It marks the end depending on what your "case" is. It is my understanding that this bill makes it retroactively legal for telecoms that released information under the President's order but without a warrant. In other words, they still have to prove that the request came directly from the highest levels.

The bill also requires a court approval for wiretapping Americans living abroad and prohibits government from ignoring rules under the cloak of war. On the flip side, it allows emergency surveillance with approval after the fact (I'm not sure what happens if the surveillance was deemed unnecessary).

I'm not sure why you mention ex post facto. I thought the ex post facto prohibition was on making things illegal after the act had been committed, not, as in this case, making things legal after the fact. I would certainly hope that my government could make an issue legal at any time and halt prosecution of related cases.

[jur1st]

Re: EFF perspectives on retroactive immunity for telcos

I haven't read the legislation yet...hell...I haven't even had a chance to finish reading DC v. Heller yet but I am pretty familiar with the larger issues.

The issue of whether the constitution prohibits ex post facto laws which de-criminalize actions or grants immunity hasn't been answered as far as I know. I'm sure that the EFF et al. will do all that they can to challenge the constitutionality of the issue.

Keep in mind the broader perspective and the implications that such a ruling could have in future cases of legislative action to decriminalize certain behavior as well as the true intent of the framers of the constitution.

[Voltage Spike]

Re: EFF perspectives on retroactive immunity for telcos

It marks the end depending on what your "case" is. It is my understanding that this bill makes it retroactively legal for telecoms that released information under the President's order but without a warrant. In other words, they still have to prove that the request came directly from the highest levels.

Apparently there may be more to this. The program was essentially: find Americans to spy on, if they are local then tap the phones of foreigners that are known to communicate with that American. However, it appears that many telecoms decided that the easiest way to do this was to provide the NSA unfettered access to certain communication pipelines (with the supposed assumption that they wouldn't abuse that privilege).

In other words, it is difficult for a casual observer can make an informed decision on this case. It is certainly obvious, though, that the executive branch was going against the spirit of the law and resorted to loopholes and "war powers" in order to behave unethically.

[jur1st]

Re: EFF perspectives on retroactive immunity for telcos

From the EFF Senior Staff Attorney:

"Even though Congress has failed to protect the privacy of Americans and uphold the rule of law, we will not abandon our defense of liberty. We will fight this unconstitutional grant of immunity in the courtroom and in the Congress, requesting repeal of the immunity in the next session, while seeking justice from the Judiciary. Nor can the lawless officials who approved this massive violation of Americans' rights rest easy, for we will file a new suit against the government and challenge warrantless wiretapping, past, present and future."

Full press release

[Voltage Spike]

Re: EFF perspectives on retroactive immunity for telcos

While we're on the subject of love-hate bills, how come we hear about the President asking for line-item veto power but no line-item voting by congress? Has anyone tried such a system? How did it affect the ability to "compromise" on laws?

[Voltage Spike]

Re: EFF perspectives on retroactive immunity for telcos

And I open my mouth once again to offer a perspective for people.

The government was demanding something legally questionable and ensured target companies that the action was legal and companies would be free from prosecution. The parties being punished aren't the ones who demanded this action but those who cooperated.

Keep in mind the broader perspective and the implications that such a ruling could have in future cases of legislative action to decriminalize certain behavior as well as the true intent of the framers of the constitution.

I understand what you are getting at, but it seems really risky to participate in illegal actions in anticipation of the government later granting a pardon (which is essentially what this is).

Plus, I'd be really pissed if I were rotting in prison for violating a law that was later repealed. To suggest otherwise is to imply that law takes precedence over ethics ... then again, you are a lawyer. *shakes fist*

[bascule]

Re: EFF perspectives on retroactive immunity for telcos

The issue of whether the constitution prohibits ex post facto laws which de-criminalize actions or grants immunity hasn't been answered as far as I know.

As I understood it this legislation would provide immunity against civil lawsuits, and SCOTUS case precedent allows (in certain cases) ex post facto laws for civil matters.

[theprez98]

Re: EFF perspectives on retroactive immunity for telcos

In what we be no surprise to many, I am probably one of the few who thinks the updated FISA provisions are a good thing. FISA was outdated and needed some updating, although its not perfect of course.

Consider that our knowledge of the program is not full; in fact large majorities of the Congress have not even been briefed on the details. Of course, knowledge of the program is probably one of the biggest reasons for the lawsuits. Speaking of the lawsuits, from what I have read, they were pretty weak on the standing issue. None of the groups had actual knowledge that they were being wiretapped, but just thought they might have possibly been wiretapped. Other such cases have already been dismissed on these exact grounds.

Still, we cannot wiretap communications that start and end outside the US when they travel through the US, without a warrant. So some guy in Russia makes a call to some guy in South Africa (both not Americans), and the call is routed through the US. Warrant required. Why? Since when does our 4th Amendment apply to foreigners in their own country? SCOTUS has previously ruled in United States v. Verdugo-Urquidez that the Constitution does not apply to non-US persons outside of the United States.

Also consider that this entire situation has created a legal environment in which telecoms will no longer go along with the government's requests for wiretapping, unless immunity is free and clear beforehand; and even then, I would guess they wouldn't do it anyway without a warrant.

And just for measure: A number of Presidents before Bush (among them, the Executive Orders are available for both Carter and Clinton) have authorized warrantless wiretaps in the same manner as the Bush administration; so this is clearly not a "recent" issue. For example, here is Carter's EO:

By the authority vested in me as President by Sections 102 and 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802 and 1804), in order to provide as set forth in that Act (this chapter) for the authorization of electronic surveillance for foreign intelligence purposes, it is hereby ordered as follows:

1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section...

[bascule]

Re: EFF perspectives on retroactive immunity for telcos

My problem is really with an ex-post facto law granting immunity to corporations who willingly spied on Americans. Surveillance of foreign nationals with no Americans involved does not violate the Fourth Amendment and does not concern me.

[ndex]

Re: EFF perspectives on retroactive immunity for telcos

Telcos have *always* cooperated with the AG when a warrant was presented. This bill allows the telcos to continue to cooperate ONLY when warrants are presented and does not the previous requirement for a warrant to be presented. THAT is the critical provision in this bill which preserves privacy (again). With respect to retro-active immunity, and the compromise everyone is concerned about this is the choice that had to be made to prosecute the people who committed the constitutional violations in the first place.

The retro-active immunity that has been provided to the telcos allows them to provide to the Department of Justice investigators detailed information regarding WHO REQUESTED the unwarrented wire taps without risk of civil (class action) suits from innocent citizens. This then clears the way for criminal prosecution of the actual offenders in the government and private industry who may have conspired to subvert the constitution.

The telcos themselves were compelled in the name of National Security to comply with the government at a time where they felt they were doing what was in the best interest of the people. They were clearly wrong and broke the law. They support a reiteration of the law which requires a warrant for a wire tap but if you think that telcos don't fully cooperate with federal wiretaps routinely, you are on crack....

In the long run, prosecution of subversion of the US Constitution (which is actually treason) is a more important goal than prosecuting the telcos, who were essentially acting as our parents in this equation, for trying to protect us. The individual cases of violation of civil liberties will be able to be pursued against the government as criminal causes because no criminal immunity was provided in this bill.

[theprez98]

Re: EFF perspectives on retroactive immunity for telcos

The telcos themselves were compelled in the name of National Security to comply with the government at a time where they felt they were doing what was in the best interest of the people. They were clearly wrong and broke the law. They support a reiteration of the law which requires a warrant for a wire tap but if you think that telcos don't fully cooperate with federal wiretaps routinely, you are on crack....

In the long run, prosecution of subversion of the US Constitution (which is actually treason) is a more important goal than prosecuting the telcos, who were essentially acting as our parents in this equation, for trying to protect us. The individual cases of violation of civil liberties will be able to be pursued against the government as criminal causes because no criminal immunity was provided in this bill.

The scope of the President's executive powers has never fully been explored by SCOTUS. Presidents of both parties have long held that the President's executive powers allow for warantless wiretapping for national security reasons. To claim that "They were clearly wrong and broke the law" is a bit much, especially when no court has made such a determination.

As for the crack reference, I'll pass, but the telco's have already said what I referenced, so I'll go with what they said, and not what you think they'll do.

[bascule]

Re: EFF perspectives on retroactive immunity for telcos

This appears to be the EFF's reaction:

http://www.eff.org/deeplinks/2008/07...t-begins-today

Repeal Immunity

...good luck!

[moleprince]

Re: EFF perspectives on retroactive immunity for telcos

Maybe old news, but this seems to be a pretty nifty visualization of the new FISA:
http://www.ketchupandcaviar.com/poli...ide-flowchart/