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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: 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.


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