backtop


Print 73 comment(s) - last by nstott.. on Jun 24 at 8:46 PM

Critics say compromise bill is anything but

The U.S. House of Representatives quickly passed the FISA Amendments Act yesterday, which if made into law would expand the government's surveillance abilities and grant retroactive immunity to telecoms for their role in post-9/11 mass domestic wiretapping.

The Act, known more formally as H.R. 6304 and born after months of negotiations, represents a “bipartisan compromise” over similar legislation that died on the House floor last February.

Much of the negotiations revolved around the thorny issue of “telecom immunity,” which if included would kill the 40+ lawsuits currently in progress accusing communications providers of assisting the Bush Administration in an illegal, post-9/11 surveillance program. As the bill currently stands, a court review will determine if providers received a presidential order requesting the wiretaps – regardless of whether or not the correct warrants were filed – and then drop all pending litigation if that condition was met.

The “warrantless wiretapping” program, initiated by the Bush Administration in the wake of the September 11, 2001 terrorist attacks, ran for almost six years until it was discovered by the New York Times.

With time running out on the country’s surveillance laws – current versions of the Foreign Intelligence Surveillance Act, which governs the nation’s surveillance activities, are set to expire in August – Congress has little time to negotiate. The Bush Administration previously took a hard-line stance against FISA updates that failed to include a provision for telecom immunity, although it was reported earlier this year that the White House decided to relax its stance.

The FISA Amendments Act “balances the needs of our intelligence community with Americans' civil liberties, and provides critical new oversight and accountability requirements,” said House Majority Leader Steny Hoyer.

“The House of Representatives today has fallen down on the job,” said the Electronic Frontier Foundation activist Hugh D’Andrade. “By passing the FISA Amendments Act … [the House] voted to give this lame duck President an undeserved parting gift by passing immunity for telecoms that helped the President violate the Constitution by participating in the NSA's massive and illegal spying program.”

“Immunity for telecom giants that secretly assisted in the NSA's warrantless surveillance undermines the rule of law and the privacy of every American,” said EFF Senior Staff Attorney Kevin Bankston. “We are deeply disappointed that the House Leadership, which was so courageous in its previous opposition to telecom immunity, caved to the Administration's fear-mongering and put this seriously flawed legislation on the floor for a vote.”

In addition to the aforementioned telecom immunity provisions, the FISA Amendments Bill would:

  • Allow the government to conduct emergency eavesdropping without court approval for up to a week.
  • Allow secret FISA courts to review expiring surveillance orders for up to 30 days before renewing them.
  • Prohibit the government from superseding surveillance rules, even if it invokes war powers.
  • Require court permission to wiretap Americans overseas.
  • Obscure out American citizens’ names when wiretapping conversations between an American citizen and a foreigner.

H.R. 6304 passed the House 239-129, and is slated for the Senate as early as June 23.



Comments     Threshold


This article is over a month old, voting and posting comments is disabled

No Problem
By Master Kenobi (blog) on 6/21/2008 10:15:31 AM , Rating: -1
I never got what the whole problem with giving the telco's immunity was. It's not like they really had a choice to tell the government to "go pound sand". Just like they telco's and web providers in China and other countries play ball with those companies (even if americans might disagree with it). They are simply playing ball with the U.S. government this time. Immunity from the mountain of lawsuits people are pressing against the telco's is quite annoying for them I would imagine. If people want to sue someone, sue the government, don't try to sue the companies the government dictated terms to.




RE: No Problem
By GarfieldtheCat on 6/21/2008 10:24:02 AM , Rating: 4
Hate to tell you, but no one has to (in fact, they are required not to) follow an illegal order. If a cop tells you do do something obviously illegal, are you really going to do it? I didn't think so.

The telco's have know this was illegal for 30 years now (since FISA passed). It's black and white, and been around for a long time. They have plenty of lawyers to tell them this. They knew it, and knowling broke the law. And you want them to get off? Do you support Enron exec's getting off? Or regular criminals as well?

So basically, you are support the power of the government (specifically the President) to overrule the law whenever they feel like it, with no consequences. Is that what you really want? What happened to a nation that had to follow it's own laws? Did Congress pass a bill declaring Bush a King, and above that law that I missed?


RE: No Problem
By abzillah on 6/21/08, Rating: -1
RE: No Problem
By Ticholo on 6/21/2008 11:54:49 AM , Rating: 2
So because they "took the money", they're less guilty?
Or it's because the government was the one "handing them the money"?
Oh, wait! The government is the people, so the people paid the companies! They should sue themselves!!!


RE: No Problem
By Some1ne on 6/21/2008 3:57:24 PM , Rating: 2
quote:
Just like you wouldn't do anything if the cop tells you to do when illegal, but if you have two choices of doing what the cop says and you get benefits, or you don't do anything the cop says and he bothers your for the rest of your life, we would choose the easier route.


Just because following the order and taking the reward/payout/bribe is more convenient, that doesn't make it right.

People/business entities are just as obligated to disobey unjust orders and laws as they are to follow the just ones. And if ordered to do something illegal, then yes, they should refuse to do it, even if it means that the person giving the orders may attempt to punish them for it. That's what the judicial system is for. The government orders you to do something illegal, you refuse on the grounds that it is illegal, and then if the government tries to penalize you for refusing, you take them to court for both the initial illegal order, and for any retalliation that they tried to exact.


RE: No Problem
By lco45 on 6/23/2008 6:05:36 AM , Rating: 1
No abzillah,
If the government of your country sends some guys around to the head office and says "hey, we know it's illegal, but we really want to catch these bad guys", you should say "oh, it's illegal? How dare you ask us to do it then?".
Then the people who did the asking should go to court for breaking the law.
The laws are there because they are the laws the people want, and the current government shouldn't ask people to break them for any reason. The current government CAN ask the congress or parliament if it would be OK with everyone if the laws were changed, but they can't just go ahead and ignore them.

Luke


RE: No Problem
By nstott on 6/23/2008 11:54:46 PM , Rating: 2
Please go study US history and law before posting anymore sophomoric nonsense.


RE: No Problem
By emboss on 6/21/2008 11:51:49 AM , Rating: 2
quote:
Did Congress pass a bill declaring Bush a King, and above that law that I missed?


Wasn't that the Patriot Act? :)

Anyhow ... IMO the immunity clause is redundant. If the telco made sure that all the legal i's had been dotted for the wiretaps, then they have nothing to fear from the lawsuits. If they didn't, then they broke the law and in the true spirit of the US legal system should be taken to the cleaners.


RE: No Problem
By Master Kenobi (blog) on 6/21/2008 1:37:47 PM , Rating: 2
What is legal and what is illegal is up to the government to decide. I enjoy that people seem to think that following government mandate to provide phone records to the government was "illegal" however it has not yet been proven in a court of law to be infact illegal. As far as the law is concerned right this second, the Telco's were legally required to produce the documentation at the request of the government.

Pending the results of the countless lawsuits against the government and telco's nothing is illegal or legal quite yet. Granting the telco's immunity is the only protection they have should later on the courts decide that the request was illegal. If you were the telco's, it is not within your right to determine what is legal and what is illegal. You abide by all government requests and then challenge them in court later over the legality of the request. But as we know this takes years to determine legality.


RE: No Problem
By wrekd on 6/21/2008 3:49:52 PM , Rating: 2
quote:
What is legal and what is illegal is up to the government to decide.


Um, in spitit, I think that is exactly the situation the founders where trying to avoid.

Yay for totalitarianism!


RE: No Problem
By nstott on 6/24/2008 12:02:12 AM , Rating: 2
No. That's what all governments do. Since the US government is of and by the people through a democratic process, it is not totalitarian in this case. Do you really think the US courts are part of the private sector?


RE: No Problem
By Some1ne on 6/21/2008 4:05:17 PM , Rating: 2
quote:
I enjoy that people seem to think that following government mandate to provide phone records to the government was "illegal"


If the mandate was obtained in an illegal fashion, then following it is illegal. Specifically, granting a wiretap is *supposed* to require a warrant to be issued. And getting a warrant issued is supposed to involve a judge reviewing any evidence that exists in favor of putting the wiretap in place, and then deciding whether the evidence justifies the wiretap or not. If the party requesting the wiretap does not have sufficient evidence to make it appear justified to an impartial third-party, then they have no right to be putting the wiretap in place. And if they have not been granted the legal right to put one in, then putting one in is illegal. It's as simple as that.

Just because some high-level government official decides "warrants are inconvenient, so I'm just going to start passing out mandates requiring them as I see fit", that doesn't make the process legal (and more importantly, it doesn't make it just, for that matter), and it doesn't make compliance with the mandates legal, either.


RE: No Problem
By emboss on 6/21/2008 10:39:47 PM , Rating: 2
quote:
As far as the law is concerned right this second, the Telco's were legally required to produce the documentation at the request of the government.


Then, like I said, the telcos don't need an immunity clause. They walk into the courtroom, point at the law that required them to put the tap in place or supply information, and walk out. The fact that there is an immunity clause suggests that the telcos didn't do enough checking of the requests.

The legality/constitutionality of the law or executive order that required the telco to do something is a completely different matter, and irrelevant to the telco lawsuits. Would it be nice if the telcos had challenged the law? Yes. Are they required to? Not at all.

quote:
You abide by all government requests and then challenge them in court later over the legality of the request.


I should certainly hope not. Given that the "government request" is, in this case, coming in the form of an NSA employee requesting a wiretap without a warrant, I'd expect that the telco would tell the employee to get the proper bits of paper in order and come back later rather than just put the wiretap in place and assume everything was OK. If an executive order (say) accompanied the request, then the telco must do it and their hands are clean.

It's exactly like GarfieldtheCat said - if a police officer tells you to do something that is clearly illegal, would you do it? Unless the officer can cite the chapter and verse where it says I'm required to follow the order, I'd tell them to go do it themselves. Similarly, the telcos should have asked where it said they were required to perform an otherwise illegal action, checked to make sure that the statute said what the employee was claiming it said, documented it, and then proceeded. If they followed this process, then they don't need immunity.


RE: No Problem
By masher2 (blog) on 6/21/2008 11:28:31 PM , Rating: 3
> "Then, like I said, the telcos don't need an immunity clause. They walk into the courtroom, point at the law that required them to put the tap in place or supply information, and walk out"

The point of this immunity, however, is to dismiss the need for the telcos to even supply that information. Once that happens, exactly what the government is collecting becomes a matter of public record, which is why they're adamantantly opposed to displaying it.

> "Unless the officer can cite the chapter and verse where it says I'm required to follow the order, I'd tell them to go do it themselves"

You will then wind up with a charge for resisting arrest an-- depending on municipality-- a few bruises and scrapes for your trouble. A vast amount of legal precedent has established that citizens are not allowed to to debate the legality of orders from police personnel.

Personally, I sharply disagree with such rulings, but let's have the proper facts on the table.


RE: No Problem
By emboss on 6/22/2008 1:42:27 AM , Rating: 2
quote:
You will then wind up with a charge for resisting arrest


Err, nope, because I would not be resisting arrest. I *could* be arrested for violation of whatever statute the officer was attempting to invoke.

quote:
A vast amount of legal precedent has established that citizens are not allowed to to debate the legality of orders from police personnel.


While this is correct, if you read my post I am not claiming that you should debate the legality of a police order.

You are completely within your right to ask any law enforcement official the law under which the order is being made. If they cannot provide the information, you do not have to comply with the order. Once they do provide the information, you still have a somewhat of a choice as to whether you follow the order or not. If you choose not to comply because you believe the order in unlawful, you can/will be arrested (again, the officer must inform you under which law you are being arrested) at which point the lawyers come in to see if the order was legal or not.

Of course, in the real world, it's a heck of a lot easier to simply comply with an illegal order than go through the whole process of getting arrested, going to court, and eventually getting the charges dismissed.


RE: No Problem
By masher2 (blog) on 6/22/2008 11:53:00 AM , Rating: 2
quote:
You are completely within your right to ask any law enforcement official the law under which the order is being made. If they cannot provide the information, you do not have to comply with the order. Once they do provide the information, you still have a somewhat of a choice
I'm sorry, but this just isn't correct. As just one recent example, a case I was looking at last week involved a Florida motorist who was (it was later ruled) illegally stopped by a random police check. When the motorist -- who knew the stop was illegal -- refused to give the officer his license, the officer told him to turn around and allow himself to be handcuffed. When the motorist refused this second order, he was pepper-sprayed, wrestled to the ground, and charged with a felony count of resiting arrest.

In court, the felony count was downgraded to a misdeameanor but the charge itself was upheld. The defendant attempted the same erroneous argument you yourself present here-- that he "didn't have to obey illegal orders". The judge explained otherwise, and hit him with a large fine and a year's probation.


RE: No Problem
By emboss on 6/22/2008 11:48:38 PM , Rating: 2
Please read my post again, particularily the bit just after you cut it off. Where I say that if you decide to not obey the order, you can/will be arrested. This appears to be exactly what happened in this case (ref? I can't find anything about it through Google). Though the resisting arrest was (as always) a bad idea. It used to be legal to use anything up to and including lethal force (at which point it became involuntary manslaughter, IIRC) to resist an unlawful arrest. Unsurprisingly, this right has been revoked in most states, with resistance to an unlawful arrest either being classed as resisting arrest or interfering with police duties. Since I can't find the case you're referring to, was the penalty for the failure to present the license or resisting arrest?

By refusing to comply with the order, you are essentially lobbing the ball back into the officer's court. They must now decide between dropping the issue (or negotiating) or arresting you, with the latter having a chance of an official complaint or false arrest suit filed against them if they're wrong. For example, see 1995 OK Civ App 107, 910 P.2d 1087: "They claim [...] being arrested for disobeying a non-existent or unlawful order constitutes the tort of false arrest. We agree."

The range of orders (not requests, for which compliance is completely voluntary) a peace officer can give you is very limited, outside of traffic duties. They are basically just "go away", "stop doing <x>", and "make yourself available for arrest". And, in some states, "show some ID". In a traffic situation, the orders are more varied (and a little bit fuzzily defined in some states), but are still quite restricted.

However - and I suspect this was important in this case - you are often obliged to provide your license to any officer who asks for it if you are in control of a (motor) vehicle. Exact wording varies from state to state. In Florida, it is:
"XXIII 322.15 (1) Every licensee shall have his or her driver's license [...] and shall display the same upon the demand of a law enforcement officer or an authorized representative of the department."
and
"XXIII 322.15 (4) A violation of subsection (1) is a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318."
(a nonmoving violation is $30, FWIW) So although the stop was unlawful, the order to provide the license was quite possibly not. Again, I'd have to see the judge's wording to see what the actual reason was. However, if the order to produce the license was in fact an unlawful order, and he didn't resist arrest, he would have had a good shot at false arrest.


RE: No Problem
By masher2 (blog) on 6/23/2008 10:40:11 AM , Rating: 2
> " For example, see 1995 OK Civ App 107, 910 P.2d 1087"

That case directly contradicts your tertiary point. From the ruling:
quote:
When arresting a person without a warrant, the officer must inform him of his authority and the cause of the arrest, except when he is in actual commission of a public offense
In other words -- even if the officer doesn't observe you committing a crime he only has to tell you the reason for the arrest. He doesn't have to cite the particular statute or clause. Furthermore, if he believes you've just committed a crime, he doesn't even have to tell you the reason for the arrest.

Now, lets turn to your main point. We're essentially saying the same thing, only disagreeing over the meaning of the word "have". If you don't obey a police order -- even an unlawful one -- you will be given additional orders and be arrested. Continue to disobey and you'll wind up assaulted and/or dead. The proper place to debate the legality of police orders is in the courtroom, not the street.


RE: No Problem
By Ringold on 6/22/2008 4:36:15 AM , Rating: 1
quote:
If a cop tells you do do something obviously illegal, are you really going to do it?


I dont see how the post deserved a +5 with the above logic.

Damn right I'd do what the cop told me to do. Why? He's got a baton, and that isn't enough for him, he's got a gun. If the police are corrupt, my resistance would be all for naught; I could just end up in jail, or mysteriously find myself out of a job or blackballed in other ways.

If people have a problem with what happened in the past, I fail to see the logic in pursuing companies. If what they did was in fact illegal, and they did it at the direction of the government, then here is my logical conclusion: Someone in the government needs to go to jail, because the government was the source of the illegal activity, not the companies. Has my logic train skidded off the tracks?


RE: No Problem
By masher2 (blog) on 6/22/2008 1:00:15 PM , Rating: 3
quote:
Someone in the government needs to go to jail, because the government was the source of the illegal activity, not the companies. Has my logic train skidded off the tracks?
No, people are just at the mercy of their education by Hollywood-movie, which has taught them that government is the ultimate fount of all goodness, whereas corporations are all run by evil, domineering arch-villians.


RE: No Problem
By nstott on 6/23/2008 10:00:51 PM , Rating: 2
It isn't illegal, so your understanding of FISA and history is lacking. The US Supreme Court upheld a 6th Circuit decision against the ACLU lawsuit against the NSA. The legality was not determined, which means that it has not yet been determined to be illegal.

FDR had ALL communications in and out of the US monitored during World War II after the attack on Pearl Harbor, and Woodrow Wilson had all communications between the US and Europe monitored during World War I.

What Bush is doing with his presidential war powers by monitoring communications to and from foreigners residing in terrorist hotbeds or terrorist suspects in and out of the US is far more limited than what FDR and Wilson were doing (especially if you throw in FDR's Japanese internment camps). This is not "the biggest power grab of any President in US history." The only people who believe that don't know US history.

BTW, the biggest power grab of any President in US history was by Abraham Lincoln. He suspended the writ of habeas corpus and emancipated the slaves. Most believe that he violated the US Constitution when he suspended the writ of habeas corpus, but Article I, Section 9 states:

quote:
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.


Hmmm... "...unless when in cases of rebellion or invasion, the public safety may require it."

So what was the intent of the Founders?


RE: No Problem
By ChiefNuts on 6/21/2008 10:40:19 AM , Rating: 2
Well that's what Qwest said, and because of it they lost several multi-million government contracts to long back-haul lines across qwest territory.


RE: No Problem
By Jad77 on 6/21/2008 10:55:55 AM , Rating: 2
Sue the government, now that's rich.


RE: No Problem
By Master Kenobi (blog) on 6/21/2008 1:39:11 PM , Rating: 2
People sue government agencies all the time. Nothing new.


RE: No Problem
By CuiBono on 6/21/2008 9:46:32 PM , Rating: 4
Like all of you can see now - the bastards that run this county are above the law, so sueing will not work. The law and the cops and all are their tools to keep us down. What are you going to do now?!


RE: No Problem
By LostInLine on 6/23/2008 2:04:34 PM , Rating: 3
Then you should vote for candidates that vow to reduce the size of government.

...like there are any.


RE: No Problem
By masher2 (blog) on 6/23/2008 2:40:31 PM , Rating: 3
There was Ron Paul...unfortunately, he only pulled in about 5% of the vote.


"We shipped it on Saturday. Then on Sunday, we rested." -- Steve Jobs on the iPad launch

Related Articles













botimage
Copyright 2014 DailyTech LLC. - RSS Feed | Advertise | About Us | Ethics | FAQ | Terms, Conditions & Privacy Information | Kristopher Kubicki