Judge Hears Arguments Over Telco Immunity

from the Constitutional-questions dept

Wed, Dec 3rd 2008 6:16am — Mike Masnick

We were quite disappointed with Congress earlier this year, selling out the country and granting retroactive immunity to telcos for any involvement they might have had in any warrantless wiretapping program. The immunity basically gave the White House a get out of jail free card that it could hand to any telco -- even if that telco clearly violated constitutional rights. No matter which side of the political aisle you fall on, this should be extremely disturbing. It basically lets the President decide that certain companies don't need to obey the constitution. That, by itself, seems to be unconstitutional.

Not surprisingly, the EFF and the ACLU sued over the granting of immunity, and the judge in the case heard the arguments on both sides on Tuesday. While there was a lot of back and forth, at least part of the exchange suggested that the judge agreed with the government's position, telling the EFF's lawyer that he should take up his complaint with Congress, not through the courts.

Perhaps I'm missing something, but isn't a large part of the reason for the judicial system to be a check on the power of Congress and the White House -- specifically on making sure they don't do anything unconstitutional? It's not clear when the judge will rule, but I've yet to see a single reasonable explanation for why telcos should be granted immunity. If what they did wasn't illegal, then there's nothing to worry about. If what they did was illegal, but they felt that it was in the best interests of the country, then let them explain that in court to mitigate the situation. Granting retroactive immunity goes against everything the rule of law should stand for.

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Filed Under: telco immunity
Companies: aclu, eff

42 Comments

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Anonymous Coward, 3 Dec 2008 @ 6:41am

The Constitution? That old document; it isn't relevant anymore is it? This is just one of the many ways the government is ignoring the constitution while We the People stand by and let it happen. The truly sad thing is many people think that the constitution is either not relevant any more or open to interpretation. There is very little interpretation needed as there are many supporting writings and statements by the founding fathers that clarify what was meant by the constitution. Of course the liberal media never refers to the supporting documents when discussing the constitution.
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- eleete, 3 Dec 2008 @ 7:27am
  
  Re:
  Agreed, and to add, I'm sure if you follow the money trail it ends with the polluticians that allow and push for this.
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- Betsy Ross, 3 Feb 2009 @ 11:12pm
  
  Re: anonymos coward
  Here, here!! But the true culprits in this really haven't been called out on the carpet. While Congress passed the Patriot Act (after most had not had even the time to read it) what has happened is that it is the corporate lawyers who advise these telecom companies who are really to blame. That provision was blatantly unconstitutional if it was used against U.S. citizens intra or interstate calls. It was their duty to advise their clients that they could potentially fact future liability in complying with such a law. Those corporations were also in a no win situation, either face themselves government suits and harassment by the Bush Administration, or the potential for future lawsuits. Seems the Bush regime again protected their campaign donations who spread their largesse on both sides of the aisle, and again it is the American people who were and are victimized by the Washington cesspool.
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Anonymous Coward, 3 Dec 2008 @ 7:43am

Of course the liberal media never refers to the supporting documents when discussing the constitution.

Liberal Media? It isn't as if the Conservative Media has done anything in this regard either. Lets leave off the labels and call it what it is: The Mainstream Media.

Liberal, Conservative, Democrat, Republican, Right Wing Zealots and Left Wing Radicals. How long did it take for this country to become so divided? It's a shame that We the People have become so pacified. Spoon fed our thoughts and values by those in the position to do so (from the Clergy and the Media), that we allow ourselves to be mindless drones unwilling to think for ourselves. Few people rant and rave to get others to "Vote them out!" Or the more extreme, "Rise up with guns." But as long as the majority of the people are comfortable, they'll sit there and consume all that the Mainstream Media has to offer.
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Charlie, 3 Dec 2008 @ 7:47am

Does it need pointing out that the world is run by corpses?
Peter Watts' novels, among others, offer results of the abrogation of constitutional 'protections' and the new world disorder. I'm glad to be dead.
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- Anonymous Coward, 3 Dec 2008 @ 8:13am
  
  Re:
  I assume you mean that the founding fathers, being dead and all, are the corpses running our country? If so, you do have a point, but is that necessarily a bad thing? I don't think so in this case. The founding fathers saw the alternative first hand and framed a better government. If you look at it, it really is just a framework. It does not spell everything down to the letter. The protections they put into the constitution, when followed, are about all that is needed to run a country.
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  - Anonymous Coward, 3 Dec 2008 @ 8:19am
    
    Re: Re:
    Take the 10 commandments as another example. Putting all belief/disbelief aside; take a hard look at the commandments. These 10 commandments cover pretty much everything one person could do to harm another (and God) either through insult or injury. Imagine a world where people actually followed these 10 rules. The constitution is similar (though without any eternal ramifications). It is a framework that defines our rights. When followed, the government is truly there to serve the people, not the other way around.
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  - Anonymous Coward, 3 Dec 2008 @ 8:32am
    
    Re: Re:
    >> I assume you mean that the founding
    >> fathers, being dead and all, are
    >> the corpses running our country?
    
    Gee, you are a dense one aren't you? What do you think they meant when they wrote the 4th Amendment?
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    - Anonymous Coward, 3 Dec 2008 @ 8:50am
      
      Re: Re: Re:
      I guess I am dense because I don't see how an amendment against unreasonable search and seizure applies to corpses running our country?
      
      But speaking of which, those license checks police are fond of are a prime example of a violation of the 4th amendment. Another example is game wardens checking for hunting licenses and examining the contents of fisherman's coolers. I don't see any probably cause and I definitely don't see any warrants being used in these cases.
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      - Anonymous Coward, 4 Dec 2008 @ 5:44am
        
        Re: Re: Re: Re:
        Re: liscense checks, I donno. assuming they had a fair reason for pulling you over (speeding or running a red, not a tail-light out), I don't think it's unreasonable to say they have enough suspicion to check.
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Charlie, 3 Dec 2008 @ 8:37am

Re: 'founding fathers, being dead and all'
No. I do not mean that. 'Corpses' is a catchall term used to describe 'corporate types' (Peter Watts' novels use this term). There is always a struggle in any society over who will rule regardless of laws, commandants, or agreed-upon principles. In the world of today, the 'corpses' are winning/have won. Death is my transcendance of this reality.
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Mike, 3 Dec 2008 @ 8:40am

Just a little more...
Governemts using fear to control the populace used to be a third world issue, but North America is now knee deep in it... wake up before there is nothing left.
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- Anonymous Coward, 3 Dec 2008 @ 8:54am
  
  Re: Just a little more...
  With this I completely agree! The war on drugs and drunk drivers were the first chip away from our rights (ie - unlawful search). Next come massive amounts of gun laws; none of which actually prevent anything. The truly sad part is; many people don't just stand by while it happens, they cheer it own! Look at all the people who believe "license" checks are a good thing because they catch drunk drivers. I won't even get started on the anti-gunners.
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Tim, 3 Dec 2008 @ 8:51am

The judiciary and the constitution
"Perhaps I'm missing something, but isn't a large part of the reason for the judicial system to be a check on the power of Congress and the White House -- specifically on making sure they don't do anything unconstitutional?"

Actually, no. The courts are responsible to make sure the laws are enforced equitably. The constitution gave Congress the right to draft law, no matter how draconian, as long as it didn't explicitly violate the constitution. Interpreting the constitution is a recent activity that is abused regularly by the courts.

I go agree that the Congress gave the President a "get out of jail free" card for the telcos, but we should be voting Congress members who voted for it out of office instead of looking to the courts to fix everything we don't like.
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Twinrova, 3 Dec 2008 @ 8:54am

My 2 cents, but worth .002 due to the economy.
"but isn't a large part of the reason for the judicial system to be a check on the power of Congress and the White House -- specifically on making sure they don't do anything unconstitutional?"

I'm at a loss to determine how the constitution applies to wiretapping. The 4th amendment discusses place of unreasonable search and seizure.

Wire tapping goes outside the bounds of place, does it not? How is a signal considered property?

Regardless of the questions above, to focus more on your question regarding checks and balances, since when has the American people given a damn about what the government is doing?

It seems people would rather bitch and complain rather than actually do something to voice their opinion, especially given the fact most of these whiners elected the very official they put in office.

I'm not sure who said it, but it's true that as the world's greatest superpower, we are powerless against our government due to fear.

After all, that how the phrase "you can't fight city hall" is warranted.

Your blog posting is a nice idea, but without giving people choices on how to object, it's pretty much a moot point as they just don't care.

If the tapping devices were placed in the place, I can justify the topic. However, most tapping devices aren't truly devices, but merely picking up signals once they're placed in the public scope.
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- You're joking right?, 3 Dec 2008 @ 9:11am
  
  Re: My 2 cents, but worth .002 due to the economy.
  um.. so you have no problem with the boys in blue listening to your phone calls, intercepting your emails, hell opening your snail mail too, right?
  
  And while we're at it, I'll put a tracking device on your car while it's parked on a public street and let the police know everywhere you go..
  
  Wiretapping in ANY form is EXPLICITY covered by the 4th Amendment as the Supreme Court (remember, those guys in the funny black robes whose jobs it is to INTERPRET the law) has already ruled.
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  - Doug, 3 Dec 2008 @ 9:37am
    
    Re: Re: My 2 cents, but worth .002 due to the economy.
    And while we're at it, I'll put a tracking device on your car while it's parked on a public street and let the police know everywhere you go..
    
    An IBM patent covers this--
    http://techdirt.com/articles/20080313/221036.shtml
    
    Scary stuff.
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  - Willton, 3 Dec 2008 @ 1:13pm
    
    Re: Re: My 2 cents, but worth .002 due to the economy.
    Wiretapping in ANY form is EXPLICITY covered by the 4th Amendment as the Supreme Court (remember, those guys in the funny black robes whose jobs it is to INTERPRET the law) has already ruled.
    
    When? Where?
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  - Twinrova, 4 Dec 2008 @ 4:07am
    
    Re: Re: My 2 cents, but worth .002 due to the economy.
    "um.. so you have no problem with the boys in blue listening to your phone calls, intercepting your emails, hell opening your snail mail too, right?"
    
    Once anything leaves my property, I automatically assume it's going to be read by another party other than the intended. It's why I wouldn't have a problem of those snooping in my business. I've nothing to hide.
    
    I always find it's those breaking the damn law who are usually pissed about things like this.
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- chris (profile), 3 Dec 2008 @ 9:33am
  
  Re: My 2 cents, but worth .002 due to the economy.
  I'm at a loss to determine how the constitution applies to wiretapping. The 4th amendment discusses place of unreasonable search and seizure.
  
  Wire tapping goes outside the bounds of place, does it not? How is a signal considered property?
  
  the 4th amendment says:
  
  The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
  
  how is a person secure in his person, house, papers, and effects against unreasonable search if his conversations and correspondence, electronic or otherwise, are being pen registered or actively monitored without warrants?
  
  the 4th amendment states that a search or seizure with out a warrant is unreasonable.
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- Nismoto, 3 Dec 2008 @ 9:44am
  
  Re: My 2 cents, but worth .002 due to the economy.
  If the tapping devices were placed in the place, I can justify the topic. However, most tapping devices aren't truly devices, but merely picking up signals once they're placed in the public scope.
  
  It's always a device. Installing fiber optic splitters so the "signal" can be tapped into is not the same as "picking up signals once they're placed in the public scope". These signals are not placed into the public scope.
  
  When I send an email to my mistress or call her on the phone she is the only intended recipient: not the public. Just because my communication must be handled by AT&T does not make it publicly available to everyone.
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  - Twinrova, 4 Dec 2008 @ 4:25am
    
    Re: Re: My 2 cents, but worth .002 due to the economy.
    "When I send an email to my mistress or call her on the phone she is the only intended recipient: not the public. Just because my communication must be handled by AT&T does not make it publicly available to everyone."
    
    This clearly shows why the Wiretap Act was put in place, but no where does the constitution grant you this security you seem to think you (and everyone) else has.
    
    You've hit a key word: intended. There's absolutely no guarantee, law or not, your recipient is the only one who received the message.
    
    You'd be a complete fool to think otherwise. Not trying to troll here, but the bottom line is once communication leaves your home, it IS public domain.
    
    Just because it crosses wires or airwaves means nothing.
    
    So my original statement remains: The constitution does not protect you or anyone from messages leaving your person, house, paper, and effect.
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    - Anonymous Coward, 4 Dec 2008 @ 5:50am
      
      Re: Re: Re: My 2 cents, but worth .002 due to the economy.
      I don't know. The fact that it's a federal crime to open someone else's snail mail seems to indicate another interpretation, which can readily be extrapolated to phone calls and emails. Just because emails didn't exist when the constitution was written doesn't mean it can't be covered.
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      - Twinrova, 4 Dec 2008 @ 9:44am
        
        Re: Re: Re: Re: My 2 cents, but worth .002 due to the economy.
        It's a federal crime because it breaks a federal law.
        
        If the law was not in place, then it would be legal and the constitution still bears no weight against this type of intrusion.
        
        We should all be so lucky to think our "private" messages aren't being intercepted, but I would suggest you carry the thought of knowing it's possible to dictate what you say if you don't want prying ears to hear.
        
        And as a side note: Mike has pointed out many times that "secure" isn't necessarily so. Recently, a postal worker was arrested for using a home made device which scanned cards to determine if cash was inside them. Clever, but proof even snail mail isn't protected despite any law to the contrary.
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Lickity Split, 3 Dec 2008 @ 9:05am

It seems people would rather bitch and complain rather than actually do something to voice their opinion, especially given the fact most of these whiners elected the very official they put in office.

I am, pretty sure we did with the recent elections. While not a complete shaking out of the rug, it certainly was a good brooming.
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- chris (profile), 3 Dec 2008 @ 9:47am
  
  Re:
  I am, pretty sure we did with the recent elections. While not a complete shaking out of the rug, it certainly was a good brooming.
  
  the deal that passed was a compromise. there were two issues in the various FISA update bills:
  
  1) legalization of warrantless wire tapping for terrorist suspects
  2) retroactive immunity for the companies that participated in the warrantless wiretap program
  
  the compromise was a NO on issue 1 and a YES on issue 2.
  
  both mccain and obama agreed on that compromise:
  
  http://news.cnet.com/8301-10784_3-9982898-7.html
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  - Anonymous Coward, 3 Dec 2008 @ 10:04am
    
    Re: Re:
    I am afraid you are sadly mistaken if you think the current election was any kind of real change. Just look at the appointments being made; all the old line Dems. It will be politics as usual, only the sides have changed.
    [ link to this | view in chronology ]
    - eleete, 3 Dec 2008 @ 10:13am
      
      Re: Re: Re:
      Righton !! Change ya just cannot believe.
      [ link to this | view in chronology ]
    - Matt, 3 Dec 2008 @ 10:36am
      
      Re: Re: Re:
      I'm not sure I understand this. Yes, there are some Clinton-era dems being appointed; there is also some real huge changes, like Napolitano at HLS and Susan Rice as UN Ambassador (which sounds like it will become a Cabinet position). It's a mix of experience and fresh ideas, which is exactly what Obama always said he wanted.
      [ link to this | view in chronology ]
      - eleete, 3 Dec 2008 @ 10:44am
        
        Re: Re: Re: Re:
        BBaaaahhhhhh !! Sheep like kool aid too? BBaaaaaaahhh!
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        Willton, 3 Dec 2008 @ 1:41pm
        
        Re: Re: Re: Re: Re:
        BBaaaahhhhhh !! Sheep like kool aid too? BBaaaaaaahhh!
        
        Talk about an anti-intellectual response. But I suppose we should expect nothing less than this garbage coming from the likes of eleete.
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        eleete, 3 Dec 2008 @ 2:01pm
        
        Re: Re: Re: Re: Re: Re:
        Ahhhh Willton, coming around to ignore the facts again, welcome my litigious friend.
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        Anonymous Coward, 3 Dec 2008 @ 2:03pm
        
        Re: Re: Re: Re: Re: Re:
        But you have to admit, Eleete is correct in identification of sheep.
        [ link to this | view in chronology ]
        
        eleete, 3 Dec 2008 @ 2:05pm
        
        Re: Re: Re: Re: Re: Re: Re:
        Thank You.
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Scott, 3 Dec 2008 @ 9:41am

Double Edged Sword
You have to keep in mind that many of these 'losses of liberty' were begged for by the American public. Federal laws limiting firearms ownership, drug laws and others, all drafted under the 'Interstate Commerce' clause were directly demanded for by the American public. The Federal government resisted (initially) the publics call for such laws. We put ourselves on the slippery slope.
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Dave (profile), 3 Dec 2008 @ 9:43am

Since when does this country follow the constitution when there are terrorist out there who hate our freedoms? We should give these freedoms up so they don't attack us anymore!
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- eleete, 3 Dec 2008 @ 10:12am
  
  Re:
  Sarcasm I assume, If not...
  
  Great Idea, your family first ?
  
  "Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety."
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Mark Regan, 3 Dec 2008 @ 10:18am

But it's OK, We're Friends of George
Violations of law and constitution are OK as long as those doing the violating are part and parcel of the power structure and friends of George W.

The rest of us, YOU AND I, can EXPECT to have our constitutional rights continually violated with impunity. Our mail WILL be read (both electronic and snail), our phones conversations WILL be monitored (both home and cell), and all information obtained CAN AND WILL BE stored for subsequent use AGAINST US when the time is ripe.

That's the way it is, and Congress is not about to change it, because they henefit from the access to our private data as much as George and big industry does.
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Revolutionary1, 3 Dec 2008 @ 10:30am

Change?? Hardly...
Those with power will not give it up willingly. If "we the people" ever want our country back, we will not accomplish it by voting or talking. Corporate Personhood has assured that the rulers of our country will not be "the people" until we rise up and by force of arms, retake the country. It matters little if the coin comes up heads or tails, it is the coin itself that is bad.
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Anonymous Coward, 3 Dec 2008 @ 11:03am

Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights
This is a GREAT BOOK:
Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights By Thom Hartmann
-

"What most people don’t realize is that [corporate personhood] is a fairly recent agreement, a new cultural story, and it hasn't always been this way:

* Traditional English, Dutch, French, and Spanish law didn’t say companies are people

* The U.S. Constitution wasn’t written with that idea; corporations aren’t even mentioned.

* For America’s first century, courts all the way up to the Supreme Court repeatedly said 'No, corporations do not have the same rights as humans.'

It’s only since 1886 that the Bill of Rights and the Equal Protection Amendment have been explicitly applied to corporations. Even more, corporate personhood was never formally enacted by any branch of the US government:

*It was never voted by the public
*It was never enacted by law
*It was never even stated by a decision of the Supreme Court"
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Jesse, 3 Dec 2008 @ 12:31pm

Good samaritan: "Hey that guy broke the law."
Police officer: "Don't look at me. If you have a problem with him breaking the law, go talk to him."
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Charlie, 3 Dec 2008 @ 1:21pm

Re: anonymous asshole
Why not wait for my reply before spouting your worthless shit? I don't sit on my ass all day like you do. I have to work so I can't reply instantly. Yeah. Same to you fuck face.
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