Friday, July 11, 2008

It Gets Worse: Prospective Immunity in the Telecom Bill and Enlisting Any Persons To Spy on You

[Bush gets caught violating FISA by a) failing to get court approval for his wiretaps and surveillance over "suspects," and b) his list of suspects includes the entire American population.

Upon hearing of this, Congress does what? Demands his immediate resignation? Initiates impeachment procedures? Nope. It revises FISA in order to retroactively and in the latest bill, prospectively, forgive any of these crimes and gives him the power to demand the co-operation of any companies or individuals such as landlords or custodians or any other person to provide information about and spy upon any person the government chooses.

What kind of society exactly is it that tolerates this? What kind of government allows this? What kind of presidential candidates vote for this? What kind of "change we can believe in" is this!]

Forget Retroactive Immunity, FISA Bill is also about Prospective Immunity

By Matthew Rothschild, July 10, 2008

Leave it to George Bush to point out a little-noticed aspect of the FISA bill that he likes, but you should hate.

In his chortle over the Democratic cave-in on FISA, Bush said, “It will ensure that those companies whose assistance is necessary to protect the country will, themselves, be protected from lawsuits for past—or future—cooperation with the government.”

The news lies between those dashes.

Opponents of the FISA bill, from the ACLU to Russ Feingold, have been focusing on retroactive immunity for AT&T and Verizon and the other telecom companies.

But what may be even more alarming is the prospective immunity that telecom companies and Internet service providers and others are guaranteed by this bill.

Here are some of the relevant passages:

“The Attorney General and the Director of National Intelligence may direct, in writing, an electronic communication service provider to a) “immediately provide the Government with all information, facilities, or assistance necessary . . . b) maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the acquisition or the aid furnished. . . .”

And here’s the kicker: “No cause of action shall lie in any court against any electronic communication service provider” for providing this information.

Thus we have the Congress granting to the Executive Branch and the private sector enormous new powers to violate our privacy.

In essence, the government can now conscript the private sector to do its dirty work. But don’t pity the companies; the government will pay them for coughing up our secrets, the bill says. “The government shall compensate, at the prevailing rate, an electronic communication service provider for providing information, facilities, or assistance.”

It gets worse.

The prospective immunity extends beyond telecom companies and ISPs to include even landlords and custodians, and it is not limited to the provision of communication contents or records.

Check out Title VIII: “Protection of Persons Assisting the Government.” A “person” is defined as “an electronic communication service provider” or “a landlord, custodian, or other person who may be authorized or required to furnish assistance. . . .” Note how wide open is the category of “other person.”

And “assistance” is defined as “the provision of, or the provision of access to, information (including communication contents, communications records, or other information relation to a customer or communication), facilities, or another form of assistance.” Notice how wide open is the category of “another form of assistance.”

All of these “persons” providing “assistance” are now immunized by this bill for their future actions so long as the Attorney General certifies them in court.

Look what’s happening here: The combined powers of the Executive Branch and the private sector are now arrayed against the individual.

This is not what our Founders had in mind.

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