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Shorter Google:

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"Don’t eliminate the competitive advantage I gained by trying to protect Americans’ privacy."

McJoan reports that the CCIA wrote a letter to Congress opposing retroactive immunity.

In strong rebuke of the Chamber’s knee jerk Republican pandering, the trade group that actually represents companies in the computer, Internet, information technology, and telecommunications industries, the Computer & Communications Industry Association (CCIA) is opposed to telco amnesty [pdf], and have weighed in with their own letter to Congress.

To the Members of the U.S. House of Representatives:

The Computer & Communications Industry Association (CCIA) strongly opposes S. 2248, the "FISA Amendments Act of 2007," as passed by the Senate on February 12, 2008. CCIA believes that this bill should not provide retroactive immunity to corporations that may have participated in violations of federal law. CCIA represents an industry that is called upon for cooperation and assistance in law enforcement. To act with speed in times of crisis, our industry needs clear rules, not vague promises that the U.S. Government can be relied upon to paper over Constitutional transgressions after the fact.

CCIA dismisses with contempt the manufactured hysteria that industry will not aid the United States Government when the law is clear. As a representative of industry, I find that suggestion insulting. To imply that our industry would refuse assistance under established law is an affront to the civic integrity of businesses that have consistently cooperated unquestioningly with legal requests for information. This also conflates the separate questions of blanket retroactive immunity for violations of law, and prospective immunity, the latter of which we strongly support. [emphasis McJoan’s]

And if I’m not mistaken, Google and Yahoo are the two primary CCIA members who would be (as the letter states) "called upon for cooperation and assistance in law enforcement" [Update: as WO points out, Evil Bill Gates is as big a player in free email, and was also asked for search queries.] As you’ll recall, both Google and Yahoo were asked to turn over vast amounts of data that would have also revealed a good deal of proprietary information (Yahoo complied, Google fought the request).

The Justice Department has asked a federal judge to compel Google, the Internet search giant, to turn over records on millions of its users’ search queries as part of the government’s effort to uphold an online pornography law.

Google has been refusing the request since a subpoena was first issued last August, even as three of its competitors agreed to provide information, according to court documents made public this week. Google asserts that the Read more →

It’s All About $$$

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We know that the Administration only became intransigent about immunity for telecoms after a telecom lobbyist took over as Counselor to the President. And we know the telecoms cut off wiretaps–even a FISA one–when they didn’t get paid by the FBI. It’s pretty clear the fight over telecom immunity and FISA is about the money.

Which is probably why Republicans are now whining that telecoms are not paying them enough for their willingness to gut the Constitution. 

In a reflection of the sensitivity of the subject matter, and an apparent recognition that they would undermine their own messaging by appearing to be motivated by fundraising concerns, Republicans on and off Capitol Hill declined to comment on the record.

But several confirmed the griping in GOP leadership ranks over the phone companies’ shifting donations.

"When those numbers are made evident, it causes some angst," one Republican lobbyist said. "Leadership are told by staff, who look through this. There’s communication back and forth" between GOP leadership and downtown.

"There’s no question that from time to time staff, and maybe some Members, say to fellow travelers: ‘Are you giving us some air cover? Are you helping us help you?’"

Added another K Street Republican: "There’s a growing frustration that a lot of these guys getting screwed by Democratic leadership are continuing to load their coffers."

Republican leaders, this lobbyist said, "sit there and scratch their heads and say, ‘We’ve always been very supportive of free markets and our opponents haven’t, so why do they keep feeding the beast?’"

Shorter anonymous Republican aides: cough up for the immunity campaign. Now.

Can we start calling it a quid pro quo if this blatant demand to the telecoms works? And what’s the going rate for gutting the Constitution, anyway?

Republican No Shows on FISA Negotiation

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Let’s hope getting stood up teaches Jello Jay about Republican priorities:

In what should have been a bipartisan, bicameral meeting, staff members of the House and Senate Judiciary and Intelligence Committees met today to work in good faith to reach a compromise on FISA reform. As we have said, we are using this week to work on a compromise that strengthens our national security and protects Americans’ privacy. Unfortunately, we understand our Republican counterparts instructed their staffs not to attend this working meeting, therefore not allowing progress to be made in a bipartisan, bicameral way. While we are disappointed that today’s meeting could not reflect a bipartisan effort, we will continue to work and hope Republicans will join us to put our nation’s security first.

I guess immunity and all that isn’t so important after all…

SCOTUS Says “No Thanks” to ACLU Suit–Will It Change the FISA Debate?

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SCOTUS just declined to review the 6th Circuit’s dismissal of the ACLU warrantless wiretapping suit.

 The Supreme Court rejected a challenge Tuesday to the Bush administration’s domestic spying program.

The justices’ decision, issued without comment, is the latest setback to legal efforts to force disclosure of details of the warrantless wiretapping that began after the Sept. 11 attacks.

The American Civil Liberties Union wanted the court to allow a lawsuit by the group and individuals over the wiretapping program. The 6th U.S. Circuit Court of Appeals dismissed the suit, saying the plaintiffs could not prove their communications had been monitored.

McJoan and Christy point to the key issue here–standing. As Glenn points out, judges have ruled that this warrantless wiretapping program was illegal, yet also ruled (at least the 6th Circuit) that no one had standing to do anything about it. 

It’s not clear whether the 9th Circuit will rule different on the majority of the 40 or so cases out there. But for now, this decision sure seems to put the immunity debate in a different light. After all, if judges won’t let any of these suits advance because no one can prove standing, then why bother with the constitutionally suspect step of having Congress intervene in the Courts?

The rub is the Al-Haramain lawsuit, where plaintiffs once had documented proof that the government had intercepted calls between one of the Charity’s members and its lawyers in the US. Only the government’s Kafkaesque games, which demand lawyers for the charity treat their own memory as classified, prevents the charity from proving standing.

Is Congress going to bigfoot into the privileges of another branch of government because one Islamic charity once had proof of the Bush Administration’s law-breaking? Or is it the threat of a differing opinion in the 9th Circuit the basis of the single-minded panic about immunity?

Shorter WSJ: George Bush Is Irrelevant and So Is McCain

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This WSJ editorial beating up on Dems for their shiny new FISA spine is full of the illogical blathering you’d expect. Take this paragraph, which claims that even with immunity from PAA and even with a FISA court order, the telecoms simply won’t do as they’re mandated to do.

Mr. Reyes claims that existing wiretap orders can stay in place for a year. But that doesn’t account for new targets, which may require new kinds of telecom cooperation and thus a new court order. Mr. Reyes can make all the assertions he wants about immunity, but they are no defense against a lawsuit. For that matter, without a statute in place, even a renewed order by the Foreign Intelligence Surveillance Court is likely to be challenged as illegitimate. A telecom CEO who cooperates without a court order is all but guaranteed to get not merely a wiretap lawsuit, but also a shareholder suit for putting the company at legal risk.

Apparently, the WSJ believes that even if the telecoms have immunity, it’s no defense against a lawsuit (someone better tell Mitch and Mike McConnell that all their immunity efforts are for naught). And even if the FISA Court issues a warrant under that statute known as "FISA," the telecoms would regard such an order as illegitimate, because there’s no statute supporting it.

And of course, the WSJ parrots the now mandatory claim that ACLU and EFF are really trial lawyers wearing low-paying disguises.

So instead they’re trying to do it through the backdoor by unleashing the trial bar to punish the telephone companies.

I’m most amused, though, by the closing paragraph, which gets to the heart of the panic over FISA.

Mr. Bush has been doing his part in this debate, but his political capital is waning. The Republican who needs to make himself heard now is John McCain. The Arizona Senator is voting the right way, but he seems curiously disengaged from a debate that plays to his national security strengths. The time to speak up is before the next 9/11 Commission. [my emphasis]

Bush’s "political capital is waning" must be GOP-speak for "don’t look now because the Democrats have stood up to Bush."  And, pathetically, the WSJ whines that John McCain isn’t cowering Democrats into unquestioning obedience, either.

It’s like flying without a net, isn’t it, WSJ? When you can’t rely on Bush’s "political capital" to cow others into compliance?

Technical Glitches and Minimization

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A number of you sent me this Eric Lichtblau story describing how, because of a "technical glitch," the FBI accidentally got all the emails going to one domain, rather than just the emails to and from their particular target.

A technical glitch gave the F.B.I. access to the e-mail messages from an entire computer network — perhaps hundreds of accounts or more — instead of simply the lone e-mail address that was approved by a secret intelligence court as part of a national security investigation, according to an internal report of the 2006 episode.

F.B.I. officials blamed an “apparent miscommunication” with the unnamed Internet provider, which mistakenly turned over all the e-mail from a small e-mail domain for which it served as host. The records were ultimately destroyed, officials said.

Bureau officials noticed a “surge” in the e-mail activity they were monitoring and realized that the provider had mistakenly set its filtering equipment to trap far more data than a judge had actually authorized.

The episode is an unusual example of what has become a regular if little-noticed occurrence, as American officials have expanded their technological tools: government officials, or the private companies they rely on for surveillance operations, sometimes foul up their instructions about what they can and cannot collect.

The problem has received no discussion as part of the fierce debate in Congress about whether to expand the government’s wiretapping authorities and give legal immunity to private telecommunications companies that have helped in those operations.

But an intelligence official, who spoke on condition of anonymity because surveillance operations are classified, said: “It’s inevitable that these things will happen. It’s not weekly, but it’s common.”

My response to this is sort of similar to Kagro X’s (and given all my posts about minimization, I would certainly take issue with Lichtblau’s assertion that "the problem has received no discussion"). This story illustrates why minimization is every bit as important in the FISA discussion as immunity.

Hmm. Minimization. That rings a bell. What was it?

Oh yeah! The FISA fight in the Senate! Minimization was a concern because the Senate bill pretty much gave the government a free hand to suck up every phone call, e-mail, text message, etc. there is, and — amazingly enough — had to be amended on the floor in order to even approach a proper handling of minimization concerns. Read more →

Roll Call–Then and Now

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Phred asked what we had accomplished with all our work in the last five months. I’ve got a more specific post (among other things, calling out my Senator Stabenow for another one of her ridiculously bad votes). But for now, here are Democrats who voted for the Protect America Act, in August (bold are those who voted differently today; final vote was 60-28-12):

Bayh (D-IN)
Carper (D-DE)
Casey (D-PA)
Conrad (D-ND)
Feinstein (D-CA)
Inouye (D-HI)
Klobuchar (D-MN)
Landrieu (D-LA)
Lincoln (D-AR)
McCaskill (D-MO)
Mikulski (D-MD)
Nelson (D-FL)
Nelson (D-NE)
Pryor (D-AR)
Salazar (D-CO)
Webb (D-VA)

And here are the Democrats who voted for S.2248 today (bold are those who changed their vote since August; underline did not vote in August; final vote was 68-29-3).

Baucus (D-MT)
Bayh (D-IN)
Carper (D-DE)
Casey (D-PA)
Conrad (D-ND)
Inouye (D-HI)
Johnson (D-SD)
Kohl (D-WI)
Landrieu (D-LA)
Lincoln (D-AR)
McCaskill (D-MO)
Mikulski (D-MD)
Nelson (D-FL)
Nelson (D-NE)
Pryor (D-AR)
Rockefeller (D-WV)
Salazar (D-CO)
Webb (D-VA)
Whitehouse (D-RI)

Read more →

FISA: On to the House

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Sorry I missed all the misery on FISA votes today. Though I can’t say I’m sorry to have missed the Senate committing collective hari kari again.

Which, of course, sends FISA back to the House. The Blue Dogs are no doubt ready to bend over for Bush. Again. But John Conyers isn’t going to go quietly. He sent Fred Fielding a long "to do" list, some of it relating to requests going

First, please provide access to all Members of the House Judiciary Committee those briefings and materials you have made available to 19 Members as of now. Currently, it is my understanding that the entire membership of the House Permanent Select Committee on Intelligence and the Senate Committee on the Judiciary and the Senate Select Committee on Intelligence has been permitted to be “read in” to the TSP program. The only Committee of jurisdiction that has not been offered the same access is the House Judiciary Committee. This is unacceptable and serves little purpose but to impede our Members review of the program and understanding of your request for retroactive amnesty.

Second, please provide the Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, II, General Counsel Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Office of Legal Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States. It is believed that this Memorandum is dated either October 17, 2001, or October 23, 2001. Based on the title of this document, and based on the contents of similar memoranda issued at roughly the same time, it appears that a substantial portion of this Memorandum provides a legal determination and analysis as to the nature and scope of the Presidential war powers to accomplish specific acts within the United States. Congress is entitled to know the executive branch’s interpretation of its constitutional powers.

Third, please provide copies of filings, correspondence or transcripts of colloquies with the Foreign Intelligence Surveillance Court about TSP or other warrantless or other electronic surveillance programs, containing legal analysis, arguments, or decisions concerning the interpretation of FISA, the Fourth Amendment to the Constitution, the Authorization for the Use of Military Force enacted on September 18, 2001, or the President’s authority under Article II of the Constitution.

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George Bush’s “Perfect Crime”

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You guys are chatty, so I thought I’d put up some of the Feingold speech you’ve been talking about.

The telephone companies and the government have been operating under this simple framework for 30 years. The companies have experienced, highly trained, and highly compensated lawyers who know this law inside and out.

In view of this history, it is inconceivable that any telephone companies that allegedly cooperated with the administration’s warrantless wiretapping program did not know what their obligations were. And it is just as implausible that those companies believed they were entitled to simply assume the lawfulness of a government request for assistance. This whole effort to obtain retroactive immunity is based on an assumption that doesn’t hold water.

And quite frankly, the claim that any telephone company that cooperates with a government request for assistance is simply acting out of a sense of patriotic duty doesn’t fare much better. Just recently, we learned that telecommunications companies have cut off wiretaps when the government failed to promptly pay its bills. The Department of Justice’s Office of the Inspector General released a report last month finding that, quote, "late payments have resulted in telecommunications carriers actually disconnecting phone lines established to deliver surveillance to the FBI, resulting in lost evidence." Since when does patriotic duty come with a price tag? Evidently, assisting the government’s criminal and intelligence investigation efforts fell somewhere below collecting a paycheck on the companies’ list of priorities.

Mr. President, some of my colleagues have argued that the telephone companies alleged to have cooperated with the program had a good faith belief that their actions were in accordance with the law. But there is an entirely separate statute, in addition to the certification provision, that already provides telephone companies with a precisely defined good faith defense. Under this provision, which is found in section 2520 of title 18, if the companies rely in good faith on a court order or other statutory or legislative authorization, they have a complete defense to liability. This is a generous defense, Mr. President. But as generous as it is, it is not unlimited. A court must find that the telephone company determined, in good faith, that there was a judicial, legislative, or statutory authorization for the requested assistance.

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Don’t Gag Ma Bell

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I’ve been dissing my Congressman John Dingell by not pointing to the letter he, Bart Stupak (also from Michigan) and Edward Markey sent their colleagues about the FISA bill. But it raises an issue that deserves more attention. After discussing the rationales for telecom immunity, they point out,

For the past five months this Committee has asked, in a bipartisan manner, the phone companies and the Administration to explain whether they acted outside the bounds of the law and what would justify Congress telling a Federal judge to dismiss all lawsuits against the phone companies. The phone companies respond that the Administration has gagged and threatened them with prosecution if they respond to our inquiries. When the Committee requested that the Administration either remove the gag or provide the Committee with the relevant information, the Administration repeatedly refused. Surprisingly, even at this late date, the Administration has not deemed it important enough to respond to our repeated inquiries or even to brief the Committee Members in closed session.

Understand, John Dingell is a long-time friend of the telecoms (and can muster an awesome lecture to constituents on telecom history on demand). And this is the crowd in the House that legislates on telecoms more generally.

Yet the Administration won’t let Ma Bell talk to them–at least not about her overwhelming need for immunity. The Republicans claim that, unless Ma Bell gets immunity, she’ll go out of business. But they won’t let her tell that to the legislators who know the telecom business best.

So it’s not just the Administration’s justifications for their illegal spying program they’ll show to only 20 or so members of Congress in each house. They won’t even let Ma Bell make her case herself. 

I’m traveling tomorrow through Wednesday, so I won’t be glued to the teevee to liveblog the FISA votes. But I’ll try to touch base as the Senate vote develops.