Topic: Telecom, Internet & Information Policy

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.

Telecom Amnesty

Over at Slate, I wonder what ever happened to the Republican devotion to the rule of law:

Press reports suggest that the Bush administration has created at least two warrantless surveillance programs with the cooperation of major telecom companies. The first, reported by the New York Times in 2005, involved the warrantless interception of several hundred Americans’ international phone calls and e-mails. Under the second, first reported by USA Today in 2006, Verizon and AT&T (then called SBC) reportedly provided the government with access to the domestic calling records of its customers. Qwest CEO Joseph P. Nacchio declined to participate in the latter program, believing that doing so would be against the law. Nacchio now alleges that the NSA retaliated for his refusal by canceling an unrelated, lucrative government contract. (He faces unrelated charges of insider trading.) Last summer, the Heritage Foundation’s Matthew Spalding insisted that giving amnesty to illegal immigrants would be “deeply unfair to the millions who obey the law and abide by the rules.” By the same token, letting AT&T and Verizon off the hook would not only be unfair to the customers whose privacy they violated, it would also be unfair to Qwest, which was put at a competitive disadvantage for obeying the law.

Last year, when the Senate was debating immigration reform, Sen. Kay Bailey Hutchinson was arguing that “America is based on the rule of law, and that law must be enforced.” Many other Republican Senators expressed similar sentiments, opposing any leniency for illegal immigrants. But yesterday she voted with every one of her Republican colleagues to forgive telecom companies for their illegal activities. If migrant workers are obligated to obey our laws, surely our largest corporations have the same obligation.

Airport Security Technology Stuck in the Pipeline

The Washington Post has a story today on the slow pace of progress in airport security technology. We would see faster development of better, more consumer-friendly security technology if the airlines were entirely responsible for it. Here’s a glimpse of what I said about this in an written debate hosted by Reason magazine a few years ago:

Airlines should be given clear responsibility for their own security and clear liability should they fail. Under these conditions, airlines would provide security, along with the best mix of privacy, savings, and convenience, in the best possible way. Because of federal involvement, air transportation is likely less safe today than it would be if responsibility were unequivocally with the airlines.