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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.

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RE: Who follows the Constitution Anyways?
By rninneman on 6/21/2008 2:03:38 PM , Rating: 0
I love how all of a sudden, all liberals are arm-chair constitutional lawyers. Go to law school and you'll learn that ex post facto laws apply to making something a crime after someone has already committed the act and then charging them for it. Granting immunity is like Congress giving them a pardon. (Although whether the wiretaps were truly illegal still is not certain given the limited information provided to the public.)

The details that a lot of people don't realize is that in wiretapping someone (even with a warrant), innocent citizens end up getting recorded in the process (and this doesn't violate the constitution.) To illustrate using a TV analogy, when Tony Soprano gets wiretapped, when he makes any phone calls, even if it's to the pizza shop down the street, the guy at the pizza shop is getting recorded as well. This guy's constitutional rights have not been violated. The reason is because at first the Feds may not have believed the call was for anything but a pizza (in which case they are required to ignore the call), but as they continue their investigation if they discover this guy is in on it too, they would then have to acquire another warrant to tap the pizza guys phone separately.

Here is the dilemma with the NSA program. We don't need warrants to tap foreign nationals; they are not protected by the constitution. When they do make phone calls to an American citizen or permanent resident alien who is protected by the constitution, they become a bystander like Tony's Soprano's pizza guy. In Tony's case, a warrant has been issued so there is not much to debate if the pizza guy is deemed involved; there was no illegal search and seizure. The case of the foreign national is different because there was no warrant to begin with. That is the conundrum.

RE: Who follows the Constitution Anyways?
By Reclaimer77 on 6/21/08, Rating: 0
RE: Who follows the Constitution Anyways?
By Ryanman on 6/21/2008 10:00:03 PM , Rating: 1
It's not a question of me being a criminal. You telling me "don't be a terrorist, and you won't have anything to hide" is complete BS.
Who really DOES care if someone's listening in on their conversations? Given the choice between having a G-man hearing me having phone sex and not, I'd take the latter. Any day. And wiretapping (and any other form of domestic surveillance) opens up a huge hole in the entire purpose of the constitution.
Lets say the Government passes a law allowing all of its employees to rape any person they choose. At that point, would you consider overthrowing the government? I know I would. So you have an incredibly entrenched domestic spying program that makes any sort of revolution impossible.
Now, I know what YOU and many other statists that seems to populate anandtech are thinking. "But Ryan, surely the government would never do that" and "nobody would ever condone such a thing... even in the future" And they might not (although it could be anything that pushes the apathetic public into a revolutionary epiphany). Maybe Bush and his cronies, not to mention their successors, are all moral people with a true desire to see free people. I doubt it.
No state run by humans can embrace freedom for eternity. Those in power will gain more, and the system will be corrupt. In a best case scenario, a revolution occurs and the series of events resets itself.
Read a history book. In the 18th and 19th centuries, the government didn't even have an income tax! Study many different aspect of how government has grown in size and power over its existence. It's a linear (if not geometrical) progression toward a police state. And if you're comfortable with that, feel free to move to Russia or even Britain. I'll continue to fight this trend by our legal system, and with deadly force when the time comes.

RE: Who follows the Constitution Anyways?
By Reclaimer77 on 6/22/08, Rating: 0
RE: Who follows the Constitution Anyways?
By Ryanman on 6/22/2008 1:34:13 AM , Rating: 3
At no point did I suggest that I'm a badass, that I'm a "rebel", that me arguing with people such as yourself makes my genitals larger or that it matters to anyone.

Nor did I say Bush invented wiretapping. If you notice, I spoke of the entire history of the United States as a whole, from the Civil War, to the New Deal, to WWII, to now. There has been a trend showing the increase in government power. By mincing my words and quoting select passages, you dodge the main question I put forth.

As you said I'm a "kid". I was an idiot who believed god existed back when Clinton was getting sucked off by Lewinski. And you making this into a personal attack about my age when you can't even muster respect and coherence speaks volumes about not only yourself, but people who accept what is told to them.

And as I also said in my reply, that was of course an extremist argument. My main question is: "WHAT if anything will get people to stop accepting domestic surveillance as a necessary evil to prevent terrorism". Our forefathers are rolling in their graves while the American public stares at the TV and continues to be apathetic about their constitutional rights being "raped".

RE: Who follows the Constitution Anyways?
By Reclaimer77 on 6/22/2008 5:02:33 PM , Rating: 1
"WHAT if anything will get people to stop accepting domestic surveillance as a necessary evil to prevent terrorism"

The freedoms we enjoy go both ways. The terrorist living here and learning how to fly planes into buildings were also enjoying our freedoms. How can you possibly stop that without legislation like the Patriot Act and wiretapping ? Would you rather we just rounded up all the dark looking people and throw them in internment camps WWII style ? Thankfully we have a better way now.

The freedoms we enjoy today could very well be because Lincoln, in an effort to save this country, completely discarded the Constitution and did what he had to do to secure the union.

Our forefathers are rolling in their graves while the American public stares at the TV and continues to be apathetic about their constitutional rights being "raped"

I think our forefathers would be damned proud today, and I don't care one bit for your over exaggerating doom and gloom outlook. America has helped defeat fascism. It took 40 years to defeat, mostly, Communism. Here we are 200 years later, after all the wars, death, pain. Triumphant. We stand alone in the world, and everyone knows it. We are the direct embodyment of the principles they left us with.

Do we not have freedom, liberty, equality, and opportunity? All that didn't come from a single piece of paper. All of that can't, and wont, be brought down by a 4 or 8 year term of the President.

Either go live somewhere else, or build a time machine so you can go back 200 years and live like they did. I guess I'm content to be an " apathetic " American who realizes wire tapping isn't the end of the world, and won't effect my life. Because I KNOW why they are doing it. Its to PROTECT me, and the ones I love.

I respect your opinion. I don't like the IDEA of wirtapping either. But people like you who want to pretend the world is Hello Kitty and hold onto ideals while stark realities are presented don't do anyone any good.

RE: Who follows the Constitution Anyways?
By Polynikes on 6/22/2008 5:55:20 PM , Rating: 3
You think our forefathers would be "damned proud" of our current government?

State's rights: died with slavery.

The federal government having limited power? It's practically limitless now. We have an extremely strong central government, which is exactly what the founding fathers DIDN'T want.

Security? I know at least one founding father who wouldn't like today's security situation. You've probably read this quote 800 times, but here, you can read it again:
They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.

- Ben Franklin

By Reclaimer77 on 6/22/2008 7:48:52 PM , Rating: 1
Ummm wasn't Ben Franklin also the one who said " The Constitution is not a suicide pact " ??

RE: Who follows the Constitution Anyways?
By masher2 on 6/22/2008 12:54:36 PM , Rating: 2
> "Lets say that when people need to resort to extremist arguments like this, that they in fact, HAVE no argument"

But, Reclaimer, many governments have existed which allowed its elite to do essentially anything they wished, including rape and murder ordinary citizens with no fear of recourse.

Now, one must ask oneself why such has never happened here in the USA. Do you believe we're genetically superior to the rest of the human race? If not, you have to accept that certain social ethics exist which prevent the government from gaining that much power.

From that, a wise person arrives at the attitude of the previous poster. Allowing the government to restrict certain rights is a slippery slope that ultimately slides down to despotism and oppression.

RE: Who follows the Constitution Anyways?
By EricMartello on 6/22/2008 11:29:07 PM , Rating: 2
Actually, I can say with a high degree of certainty that there are many "elites" who live above the law. I have no doubt that there are people here in the USA who can get away with things that would normally mean a jail sentence for the "common man".

Even though times have changed since our forefathers created the Constitution, the underlying principles of the Constitution are still applicable today. I don't think that the people standing by, allowing terrorism or whatever the "flavor of the day" threat is, is a valid basis for altering the foundation of what the USA was built upon.

You got laws like the DMCA, the ISPs blocking Usenet access, law enforcement being allowed to operate 'outside the law' and beyond established protocols...sign of the times. These things should not be taken lightly, yet to many of us, it's just another headline to read and forget about in a week or two.

By nstott on 6/23/2008 8:58:47 PM , Rating: 2
Actually, I can say with a high degree of certainty that there are many "elites" who live above the law. I have no doubt that there are people here in the USA who can get away with things that would normally mean a jail sentence for the "common man".

Especially if your a Kennedy. Just ask Teddy (Don't ask Mary Jo Kopechne; she's not available for comment).

By JonnyDough on 6/23/2008 5:25:59 AM , Rating: 2
Actually, the rape is already being done, just not to American citizens, and possibly not by Americans. But if we transport POWs to a third party country and THEY do it, then it is just like us doing it. This crap has been going on for years and Americans seem oblivious to it. We talk about "the government" as if it's a third party, when democracy is supposed to be "we the people" aka we are the government. We have no control over what our military is used for, and we have very little say in how our tax dollars are spent. It's ALREADY time for a revolution, America just hasn't realized it yet. It will take much more to wake us up, starting with our liberties being taken away. The revolution will come, it is just going to take more governmental bullcrap before Americans realize that they've been bought. 6 billion people on earth, and a few men are able to run around doing as they please to whomever they like. Do you honestly think that the heads of the "greatest nation on earth" aren't doing the same? Anyone who isn't suspicious and defiant has chosen to be ignorant and therefore is just as responsible. There is power in numbers, but if the majority is complacent then there is nothing to fear. A secret comes out in the press, and a limited number of people hear it. It would take EVERYONE hearing ALL the secrets to realize how corrupt the American Government really is.

As long as we have our beer and entertainment who cares if we have privacy/civil liberties/and the money we rightfully earned, right?

By Icelight on 6/23/2008 11:05:22 AM , Rating: 2
Lets say the Government passes a law allowing all of its employees to rape any person they choose.

Let's say the President has a nuclear bomb in his hand and has taken hostage everyone you know. He will detonate the bomb (and everyone you know) unless you let him wiretap you! What would you do?!

See, anyone can make extreme, exaggerated examples.

By nstott on 6/23/2008 8:34:18 PM , Rating: 2
Ryanman: Lets say the Government passes a law allowing all of its employees to rape any person they choose.

I thought they already have that law; it's called the Bill Clinton Stress Relief Act, or "Clinton's Law." Just ask Juanita Broaddrick.

When Clinton was caught having FBI files collected on Republicans and other political enemies, the mantra was that it was a "bureaucratic snafu." Subject changed.

How about the democrats beloved Franklin D. Roosevelt? He authorized the interception of ALL communications traffic into and out of the United States the day after the attack on Pearl Harbor. Woodrow Wilson (D) did the same with communications between the US and Europe during World War I. During these times of war, a warrant wasn't required, so this isn't anything new. Furthermore, FDR and Wilson monitored all communications, even those of US citizens and without any probable cause.

In the modern case, only communications to and from foreigners in terrorism hotbeds and terror suspects in and out of the US are being monitored. Even if they conducted a fishing expedition against a US citizen and found evidence of a crime not related to terrorism, the evidence could not be used in court based on 4th Amendment protections. If not, then where are all of the cases of people caught in NSA fishing expedition drag nets? Where are the White House press releases of your phone sex? The government has always had the ability to tap your phone at any time long before all of this, but it doesn't mean that they do it.

The Bush Administration was applying the same laws that are used against organized crime in order to avoid missing critical information. The same time issue applies to terrorism even more so. Furthermore, the New York Times publishes classified information leaked from career bureaucrats in the government every other day, so there are security reasons involved with limiting the knowledge of what the NSA is doing and how they are doing it.

BTW, the term "illegal wiretap" is not correct. The Supreme Court refused to hear an appeal by the ACLU to overturn a 6th Circuit Court verdict that said the case was without merit since they could not show any evidence of substantial personal injury to the ACLU or any other plaintiffs in the case based on NSA wiretaps. The legality or illegality was not stated by the 6th Circuit, meaning that the wiretaps have yet to be determined illegal by the courts. Calling the wiretaps illegal is similar to guilty until proven innocent.

RE: Who follows the Constitution Anyways?
By emboss on 6/21/2008 11:02:48 PM , Rating: 3
I'm only mildly concerned about government employees listening in on my personal phone calls. What I am more concerned about is government employees listening in on my business calls. I discuss confidential and financial information on the phone. This information would be very interesting to competitors and to the people running the tenders (the latter of which is sometimes a government department). While I would like to only use encrypted calls for this purpose (eg: Zfone), the rest of the business world doesn't seem to be interested.

If there are no checks and balances in the system, it becomes much easier for an entity to use the government surveillance resources for corporate espionage.

I'm mildly concerned about personal calls mainly because I tell people when I'm going to be away from home, or that the house key is under the third rock from the left in the garden. While I would like to believe that such information wouldn't find it's way to criminal elements, it does, and a more widespread wiretapping programme would only make the problem worse.

Basically, it's not the government I'm concerned about. It's government employees.

By Ryanman on 6/22/2008 1:36:42 AM , Rating: 2
That's a legitimate point. I wouldn't be so worried about the government helping your competitors, as it using said information as leverage. Telcom companies are giving into this because they don't want the hassle, but when it takes a little more to persuade the business sector to help the government, I'm sure that Domestic Surveillance will pop back into the picture.

"The Space Elevator will be built about 50 years after everyone stops laughing" -- Sir Arthur C. Clarke
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