Bush Administration Admits That Telco Immunity More Important Than Increased Spying Power

from the doesn't-that-say-something? dept

While we had thought that Congress was going to easily roll over on the so-called (but not really) compromise bill on new surveillance powers that included telco immunity from potentially illegal acts committed in the past few years, there has been some pushback in the Senate, where the bill is finally about to come up for vote. Some Senators have put together an amendment stripping telco immunity from the bill, but leaving the increased surveillance powers in place. Amazingly, the Bush Administration has now said that if telco immunity is stripped from the bill, Bush will veto the bill, even if everything else is identical. In other words, all the talk you hear from politicians about how this bill is necessary to protect Americans is hogwash. If it were true, then it is simply unforgivable to veto the bill without telco immunity.

What has been made abundantly clear by this statement is that the US government does not need these extended surveillance powers at all. Its existing surveillance powers are quite sufficient. The entire purpose of this bill then, has absolutely nothing to do with security, and everything to do with making sure that the telcos (and the administration) do not have to defend their potentially illegal actions in court. If that were not the case, then the President would still be willing to approve the bill without telco immunity.

Filed Under: bush administration, congress, immunity, senate, telcos, wiretapping

Perhaps The Senate Won't Roll Over On Telecom Immunity

from the could-it-be? dept

Maybe, just maybe, there are a few people in the Senate who actually won't just roll over and hand the President a "get out of jail free" card to give to telcos who carried out the almost certainly illegal "warrantless wiretapping" program. While last week reports suggested that the new "compromise" bill (which basically does grant immunity, as well as expand the warrantless wiretapping program) would breeze through both the House and the Senate, there may actually be a few politicians with a backbone fighting to stop it. It did cruise through the House relatively easily, but now Senators Dodd and Feingold have announced that they'll filibuster against immunity, and Senate Majority Leader Harry Reid (who had earlier suggested he supported the faux "compromise") says he'll support the filibuster.

What's not clear is whether or not there will really be enough support to get rid of telecom immunity. Early on it seemed like there was plenty of support for the "compromise" from those who thought it was best to get past that and focus on "other battles" instead. Also, there's the issue of corruption campaign funding. Jim Harper points to an analysis of the correlation between telco immunity flip-floppers in the House and donations from telcos. Take a guess what the analysis shows. Yup, those who switched positions received nearly twice as much in contributions from the big telcos. Funny how that works. And, of course, rest assured that the same telcos donate plenty to Senate campaigns as well.

Filed Under: congress, immunity, telcos, wiretapping

Our Congress Has Failed Us: Gives In On Telecom Immunity

from the no-checks,-no-balances dept

We mentioned the rumored "compromise" bill concerning telecom immunity earlier this week, and now it appears that leaders of both the House and the Senate have agreed to wording in the bill which will be brought to the floor today. From the sound of it, it's exactly what we feared: Congress has effectively given in to the administration, allowing it to grant immunity to any telco. Apparently, all that talk about not allowing the worst of this bill to go through was just talk. It's difficult to know where to begin in reviewing this "deal." It's hardly a compromise -- it's a get out of jail free card.

To summarize: it appears quite likely that various telcos broke a very clear law in providing wiretaps to the government without a warrant (as required under FISA). Despite what you might hear, this has nothing to do with emergency wiretaps where there wasn't time to go the warrants. Under existing law, in such cases, it's possible to get the wiretap and get the warrant within a few days. However, in many cases, it appears no warrant was ever sought. The fact that the telcos approved these wiretaps is almost certainly against the law -- and it seems that it should obviously be tried in a court of law to determine that specifically.

However, under this new law, Congress has basically given the President (who ordered the wiretaps in the first place, and doesn't want these trials to go forward since they may reveal that he broke the law too) "get out of jail free" cards he can hand to each telco, saying that since he told them that the wiretaps were legal, the lawsuits no longer can proceed. Basically, this puts the President above the law, lets him avoid trials that might prove that his activities broke the law and to reward telcos who broke the law at his command.

Even worse, the bill basically grants the administration the right to keep on spying without getting warrants. Intelligence agencies will be able to demand various communications providers hand over communications without court approval and without naming the target, so long as they claim that the communications are "reasonably believed to involve a non-American who is outside the country." Seems rather wide open for abuse doesn't it?

This whole thing is fairly stunning, considering that it's an opposition Congress facing off against a weak administration. Yet Congress basically gave the President exactly what he wanted, and made a mockery of the checks and balances our government was supposed to include. This is allowing a President to say the law is whatever he says is the law, while destroying basic due process and civil liberties along the way.

Filed Under: congress, immunity, telcos, wiretapping

Sweden Approves Bill To Tap All Forms Of Communication

from the you-have-no-privacy-anywhere dept

Recently, we had mentioned a bill under consideration in Sweden that would open up all forms of communication to government monitoring, and Slashdot passes on the news that the bill has been narrowly approved. Apparently a few "safeguards" were added, though those were not detailed in the article. There's still plenty of controversy about this, but it seems like yet another law put in place by those who do not understand the law of unintended consequences. This law will be abused -- and the privacy of many people will be at risk. As for those who are actually planning terrorist attacks or whatever, they'll quickly migrate to more secure forms of communication (if they hadn't already).

Filed Under: surveillance, sweden, wiretapping

Sweden Considering Law To Let The Government Monitor All Forms Of Communications

from the doesn't-anyone-see-a-problem-with-this? dept

While Sweden may have some politicians who understand copyright issues, we're about to find out how well they understand privacy issues. The Swedish Parliament is considering a bill that would give the government rather broad powers to monitor all forms of communication, from telephone to email to fax. It would require telcos to install (at their own expense) equipment that would allow this widespread monitoring. As one critic of the bill notes, it's as if the supporters of the bill assume that government officials will only have the best of intentions when using such a system. I think we can all agree that this is not the case. Any such system will likely be abused. And, of course, as that same critic points out: "No one has shown this method to be effective, the criminals will always be one step ahead, and normal users will be caught in the middle."

Filed Under: surveillance, sweden, wiretapping

Congress Thinking About 'Compromise' That Would Move Telco Immunity Questions To Secret Court

from the what's-so-secret-here? dept

There's been an ongoing battle in Congress over whether or not telcos that helped the gov't with warrantless wiretaps should get retroactive immunity for their actions. No one has given any good reason why companies should be granted immunity for any sort of illegal actions, and there are plenty of reasons why they should not. The fact that the administration "asked" them to administer the wiretaps is no excuse. The president is not above the law. Basically, the only reason to demand immunity is because it's clear that someone (or, more likely, multiple people and companies) broke the law.

The latest move in this process is a so-called "compromise" bill that would move these disputes into a secret court, who could then dismiss the lawsuits without giving any explanation whatsoever. And, yet, no one has explained why these trials should happen in secret either. Either the companies followed the procedures that are clearly stated in the law, or they did not. You can determine if they followed the procedure without giving up state secrets. This whole thing seems to be involving an awful lot of smoke and mirrors coming out of DC, with people making all sorts of ridiculous statements about "security" and "terrorism." Those statements are all meaningless distractions. There is a clear legal procedure for wiretapping that even allows for going back after the fact to get approval. There is no excuse that the process was too cumbersome or slow, because of that ability to go back. The question here has nothing to do with security and safety. It has to do with whether or not the legal process was followed -- and it's hard to see why that should remain secret.

Filed Under: congress, immunity, telcos, wiretapping

Behavioral Targeting May Be Illegal

from the smells-like-wiretapping dept

A bunch of ISPs have been experimenting with systems such as Phorm and NebuAd that monitor their users' online behavior and create profiles that help third parties create more targeted advertisements. Back in March we noted that behavioral advertising may be illegal under UK law. And last week we reported that Congress was asking some tough questions about the plans. CNet's Declan Declan McCullagh has an in-depth look at American law, and concludes that such systems are probably illegal here too. The problem is that what Phorm and NebuAd do sounds a lot like wiretapping, and wiretapping is illegal under several federal laws. At least three federal laws govern when electronic communications providers can disclose their customers' communications to third parties. One of the key questions Declan looks at is consent: the law generally allows eavesdropping with customer consent, but the exact nature of the consent isn't clear. ISPs have tended to be very secretive about their use of these systems, so at the very least, privacy laws would require that ISPs disclose what they're doing and give consumers a way to opt out. But Declan suggests that this might not be sufficient. Some of the legal experts he talked to think the law would require the ISPs to obtain the affirmative consent of customers before commencing the use of these programs. Since it's hard to imagine customers being enthusiastic about having their ISPs eavesdrop on them, such a requirement might make these programs non-starters.

Filed Under: behavioral targeting, clickstream data, privacy, wiretapping
Companies: nebuad, phorm

As Expected, Republicans Push To Get Telcos Off The Hook For Illegal Activities

from the who-woulda-thunk-it dept

Back in February, we broke the story that some Republican Congressional Representatives were looking to circulate a discharge petition to force a vote on the FISA bill that would grant telcos retroactive immunity for any illegal activity having to do with wiretap activities. And, in fact, that's exactly what happened. Earlier this week, a group of Republicans started circulating just such a petition. This is an extremely rare move. A discharge petition hasn't been used successfully since 2002. However, the reasoning behind the supporters of this discharge petition is highly suspect and deserves to be examined. Rep. Roy Blunt stated:

"More than 66 days have passed since House Democrats allowed a key piece of terrorist surveillance legislation to expire--not because they had concerns with the bill, but because they were seemingly more concerned that not enough trial lawyers would be able to file enough expensive and frivolous lawsuits against U.S. telecom firms."

That's both incorrect and misleading at the same time. First of all, there were concerns with the bill: the concerns about giving telcos immunity for potentially illegal activities. As we've pointed out, there are really only three potential reasons for wanting immunity, and they certainly have nothing to do with filing frivolous lawsuits. If this was about frivolous lawsuits, immunity wouldn't be needed -- because the cases would get thrown out. The only real reason to push for immunity is because it's known that the telcos and/or the administration acted illegally. In such a case, immunity obviously shouldn't be allowed. No one has yet given a decent reason for immunity, and the statement here to back up the discharge petition is incredibly disingenuous. Hopefully, a majority of Congressional representatives will realize that and reject the petition.

Filed Under: congress, immunity, telcos, wiretapping

House Says No To Retroactive Immunity

from the about-time dept

Despite a fear-mongering campaign filled with outright lies and fabrications, it appears that the Democrats in the House are actually asking the right questions about why we should grant retroactive immunity to telcos for potentially breaking the law in helping give the government access to information. They approved the version of the bill that they announced earlier this week, which would not get the telcos off the hook if they broke the law over the past few years.

Throughout this whole process, the one thing that has never been explained clearly is why it would possibly make sense to give the telcos immunity for breaking the law. There are perfectly legal means for the government to go out and request the information they wanted. To not go through those legal means makes very little sense, unless the government knew that it would not get approval. To anyone who claims that the government "needed" to do this, can you explain why they would "need" to do this without following the legally prescribed paths to do so? The US government is not free to do whatever it wants without oversight. That's why we set up a government with three separate branches to have oversight of each other. Otherwise, the system can and will be abused. What's happening here is that there appears to be quite a bit of evidence that the system was abused, and the White House (and the members of Congress who agree with the White House) are saying that we should ignore that. That seems problematic.

Luckily, (and, to be honest, surprisingly), it appears that some in Congress recognize this point, and are stating it quite explicitly. The EFF highlights the comments of Nancy Pelosi:

"Why would the Administration oppose a judicial determination of whether the companies already have immunity? There are at least three explanations:

First, the President knows that it was the Administration's incompetence in failing to follow the procedures in statute that prevented immunity from being conveyed -- that's one possibility. They simply didn't do it right.

Second, the Administration's legal argument that the surveillance requests were lawfully authorized was wrong; or [third,] public reports that the surveillance activities undertaken by the companies went far beyond anything about which any Member of Congress was notified, as is required by the law.

None of these alternatives is attractive but they clearly demonstrate why the Administration's insistence that Congress provide retroactive immunity has never been about national security or about concerns for the companies; it has always been about protecting the Administration."

Of course, this is not nearly over yet. The Senate still needs to vote on legislation and the President would still need to approve it -- and he's made it clear that he'll veto any bill that doesn't include immunity. For all his complaints that not having a bill approved would make the US less safe, it would appear that it's his demand for retroactive immunity that is actually holding up the bill's passage. There is nothing in the current bill that makes the country any less safe. The only thing holding it up is a desire to brush aside questions about whether or not earlier activities broke the law.

Filed Under: congress, immunity, telcos, wiretapping

India Demanding That RIM Let It Snoop On Encrypted Email Messages

from the let-us-eavesdrop-or-no-more-crackberry dept

It's certainly no secret that governments like to snoop on various forms of communication whenever possible, but they're usually not quite so blatant about the specifics. Endgadget points us to the news that Indian security officials have demanded that RIM open up a backdoor to unencrypt all messages sent via the Blackberry network or face being shutdown in India. With approximately 400,000 Crackberry users in India, that's likely to upset quite a few people. At this point, though, do people doing things likely to attract the attention of the feds not know to seek out more secure means of communication?

Filed Under: encryption, india, rim, wiretapping