Topic: Telecom, Internet & Information Policy

FISA and the “Ravenous Trial Lawyers”

One of the common talking points of advocates for warrantless wiretapping is that the debate is really about lining the pockets of “ravenous trial lawyers.” As I’ve said before, this is a particularly silly argument. An op-ed in Sunday’s Chicago Tribune makes this argument particularly well:

The Bush administration and its acolytes now claim that we must give giant telecoms amnesty for breaking the law, or else those telecoms will no longer cooperate with the government in spying efforts that help protect America. The truth is that telecoms do not need a special deal. These companies have immunity from lawsuits for turning over customer records to the government if they do so in conformity with existing law. But, in this instance, the telephone companies knowingly violated that law. If we give them a free pass this time, won’t the telephone companies feel free to violate the laws protecting our privacy in the future?

The Bush administration and its supporters in Congress complain that these lawsuits are simply about money and enriching trial lawyers – suggesting that the litigation should be stopped because of the potential damages that might be awarded in such lawsuits. This criticism ignores the fact that, according to the rules in the federal court, the only way that we could ensure that a federal judge could continue to explore previous violations if the companies simply changed their participation or the government changed or ended the program was to ask for minimal damages. We are not interested in recovering money for ourselves, nor is our counsel, the American Civil Liberties Union of Illinois. We, however, are committed to assuring that these giant companies are punished for violating the law and thus dissuaded from violating the law in the future.

More important, amnesty not only lets the companies off the hook without answering any questions, it assures that the American people will never learn about the breadth and extent of the lawless program. Some seem to suggest that we should not have our day in court because a select few members of Congress have been able to review documents about the spy program operated by the White House. The judgment of a few Washington insiders is not a substitute for the careful scrutiny of a federal court.

This is ultimately not about money, but about the principle that nobody is above the law. I actually think that a reasonable compromise would be to limit damages due to past FISA lawbreaking. This would ensure that telecom companies aren’t driven into bankruptcy while upholding the principle that violating your customers’ privacy—and the law—comes with consequences. Of course, I’d bet money that supporters of warrantless wiretapping wouldn’t accept that compromise, because they, too, know that this is an issue of principle, not money.

Collins Still Working to Preserve REAL ID

No state will comply with the REAL ID Act’s requirement to begin issuing a national ID by the forthcoming statutory deadline, May 11th.

Because of that, the Department of Homeland Security is giving states deadline extensions just for the asking. Interestingly, it’s turning around and spinning the acceptance of those extensions as commitments to comply. Many of the states shown in green on this map have passed statutes outright refusing to implement the law. (For readers new to Planet Earth, the color green typically means “go.” Green is a strange choice of color for states that have legally barred themselves from issuing the DHS’s national ID.)

With her state — the first in the nation to pass anti–REAL ID legislation — considering refusing even the deadline extension, Sen. Susan Collins (R-ME) is once again working with DHS in support of the national ID law.

She has written a letter to the governor of her state, asking him to go ahead and take the waiver, playing into the DHS strategy. Followers of REAL ID know that delaying implementation helps a national ID go forward by giving the companies and organizations that sustain themselves on these kinds of projects time to shake the federal money tree and get this $11 billion surveillance mandate funded.

The cumulative profit margin of the airline industry is less than 1%. Should even a single state refuse to accept this national ID mandate, the airline industry, airport operators (faced with reconfiguring their operations), and travelers groups would be on the Hill in an instant. The Congress would have to revisit the issue.

Evidently, Senator Collins doesn’t want to risk the chance of an up-or-down vote on whether the United States should have a national ID. Her work behind the scenes in favor of REAL ID reveals where she stands.

FISA Non Sequiturs

Julian Sanchez notes this absurd post at The Corner about the Supreme Court’s refusal to review a decision of the Sixth Circuit ruling that the ACLU lacked standing to sue the NSA over the president’s warrantless wiretapping program. Andy McCarthy thinks that…

This underscores that the President had constitutional authority to order warrantless surveillance; that the cooperating telecoms were not only being patriotic but exercising sound judgment when they complied with requests for assistance; and that the House Democrats are acting reprehensibly by refusing to consider the intelligence reform bill passed overwhelmingly in the Senate.

Julian is right to call this an insane non sequitur. The amazing thing is the number of levels on which it’s nonsensical. Let me see if I can count them.

In the first place, the Supreme Court gets thousands of appeals every year, and only accepts a few dozen of them. So the Supreme Court declining to hear a case, in and of itself, tells us absolutely nothing about the merits of the case. It simply suggests that the justices had other cases they were more interested in hearing.

Second, the Sixth Circuit decision the Supreme Court allowed to stand didn’t address the merits of the ACLU’s lawsuit—i.e. the legality of the so-called Terrorist Surveillance Program—either. Rather, the Sixth Circuit held that because the plaintiffs couldn’t prove that they personally had been spied upon, they lacked standing to bring the lawsuit. This has absolutely nothing to do with whether the program is legal or constitutional.

Third, the telecoms were not a party to this lawsuit at all, so I’m baffled as to how it could have any implications for whether what they did was legal. The legality of the program and the legality of the telecoms’ participation in it are distinct questions. One could perfectly well argue that the program was legal but the telecoms’ participation in it was not, or vice versa. So the fact that a lawsuit against the government failed tells us nothing about whether the lawsuits against the telecoms will succeed.

Fourth, the lawsuits that have been filed against the telecoms are different in important respects from this decision. The EFF suit against AT&T, for example, is based on specific evidence that AT&T is diverting traffic from its fiber-optic network into a secret room controlled by the NSA. This is the kind of concrete evidence that was missing from the ACLU v. NSA case.

Finally, and most obviously, none of this has anything to do with the merits of the competing House and Senate FISA reform bills, or with any ulterior motives Democrats might have. And indeed, if McCarthy is right that all of the lawsuits are groundless, then it’s a little bit of a mystery why he’s so anxious for telecom immunity. If the telecoms didn’t break the law, or if the law they broke was unconstitutional, then they should be able to make that argument in court. It’s only if their arguments aren’t likely to stand up in court that immunity becomes important.

The Free Market Produces Incoherent Headlines

Today’s Washington Post has a story on economic espionage by Chinese interests, most of which have connections to the Chinese government and military. Inexplicably, the headline of the story is “Even Spies Embrace China’s Free Market.”

Government-sponsored economic espionage has little to do with free markets. These are crimes (or at least civil wrongs) sponsored directly or indirectly by over-large governments. Crime and over-large governments are antithetical to free markets, not a part of them.

Evidently, there’s some kind of market failure at the Post. (Note to the economic illiterates at the Post: That’s a joke.)

DHS Promoting Violation of State Law - and Fish Now Smell Good

The Department of Homeland Security is instructing Illinois businesses that they do not have to comply with a law called the Illinois Right to Privacy in the Workplace Act.

The state’s law bars Illinois employers from enrolling in E-Verify or any similar system until the Social Security Administration and DHS can make final determinations on 99 percent of their “tentative nonconfirmation notices” - findings that people aren’t authorized to work under the immigration laws - within three days.

But in a notice that would panic any lawyer advising Illinois clients, the DHS claims that the state “has agreed to not enforce this law” because of its lawsuit against the state. “Illinois has agreed that it will not penalize employers simply for participating in the program, at least until the lawsuit is finished.”

The notice asks people who have been asked to comply with the law to “please contact DHS immediately.” The worry, one supposes, is that a rogue state employee might ask an Illinois business to comply with the state’s laws.

Fascinating. Whatever’s happening here makes the smell of fish downright pleasant.

You’ll be able to learn why Illinois might not want its employers using E-Verify in my forthcoming study, “Electronic Employment Eligibility Verification: Franz Kafka’s Solution to Illegal Immigration.”

The World Is Not Going To End This Weekend

One of the biggest problems in the FISA debate is that a lot of the reporters writing about the subject seem to be seriously confused about the details of the legislative process. Take, for example, the lede to this write-up of yesterday’s action from the Politico:

House Democrats were unable to hold together their caucus on a key intelligence vote on Wednesday, as a coalition of Republicans, Blue Dog Democrats and liberals helped defeat a measure to extend the Foreign Intelligence Surveillance Act as the deadline approaches.

The measure, which failed 191 to 229, would have extended the bill an additional three weeks to work out differences with the Senate on the issue of granting immunity to telecom companies which aided the federal government in wiretapping.

FISA is not expiring this weekend. FISA was passed in 1978 and isn’t slated to expire ever. What’s going to expire this weekend is the Protect America Act, which gave the president some additional spying powers beyond those he enjoyed under FISA. And in fact, even that is misleading, because all that’s really going to expire is the ability to authorize new surveillance activities. The PAA allowed the government to authorize surveillance programs for a year, which means that any surveillance programs that have already been approved will continue to be authorized until August at the earliest.

What this means is that the only real effect of the PAA’s expiration is that if a new terrorist suspect comes to the government’s attention, and he makes a phone call or sends an email that passes through the United States, then the government would need to fill out the extra paperwork required to get a FISA warrant in order to surveil that call. This paperwork can be filled out after the interception begins, so we’re not talking about the NSA missing any important phone calls, we’re just talking about bureaucrats doing some paperwork. That’s a problem, to be sure, but it’s a pretty minor one.

Yet virtually every press account I’ve seen seems to accept the White House’s story that the expiration of the PAA would completely shut down terrorist surveillance activities. My guess is that this is a combination of ignorance on the part of reporters and the desire to make the story seem more dramatic. (And conservative pundits like Andrew McCarthy have made no effort to clear up the confusion) But it’s a real problem, because it may allow the president to stampede Congress into passing legislation they’ll regret later.

Update: Luckily, some journalists are paying attention. My friend (and Cato alum) Julian Sanchez has a write-up for Ars Technica that accurately describes the state of play:

House Speaker Nancy Pelosi (D-CA) has signaled that she may be prepared to face down the threat. “Even if the Protect America Act expires later this week,” Pelosi said in a statement, “the American people can be confident that our country remains safe and strong. Every order entered under the law can remain in effect for 12 months from the date it was issued.” Since many observers believe that the surveillance authorizations under the PAA are likely to be couched in quite broad terms, it is likely that intelligence agencies will be able to continue most surveillance without further authorization even if the bill does lapse. The ACLU has urged Congress to simply allow the PAA to expire.

Business Travel Group Seeks Change to REAL ID

The Association of Corporate Travel Executives recognizes the problems that the Department of Homeland Security will cause if it follows through on the threat to make air travel inconvenient for people from states that refuse the REAL ID Act’s national ID mandate. That’s why ACTE has released a statement asking for change to the REAL ID law.

An ACTE release published on etravelblackboard.com says:

“The traveling public needs more time to consider how these new regulations will affect them, and to be made aware of alternative efforts that may serve the same security objectives with less stress,” said Gurley. “Divisive activity by pressuring states into accepting a mandate at the risk of inconveniencing travelers is not conducive to the best policy-making.”Gurley is referring to the Identification Security Enhancement Act S.717, described as a “compelling alternative to Real ID,” and is cosponsored by four senators from both parties. A companion bill, H.R. 1117, introduced by Tom Allen (D-ME) has been cosponsored by 32 representatives. It has been stated that these bills would produce a more secure identification program, faster than the implementation date (2017) given by DHS.

As I wrote in the American Spectator a week ago:

With enough states saying “Hell No” to the REAL ID mandate, the feds will back down from their threat to make air travel inconvenient. The airline industry will be up on Capitol Hill faster than you can say “You are now free to move about the country.” Congress will back the DHS off.

I was close. It turns out to be an air travelers group making the first to move to end DHS’s brinksmanship.