New "JUSTICE" Act Could Roll Back Telecom Immunity 263
Asmodae writes to tell us about a bill proposed in Congress that could roll back telecom retroactive immunity along with adding other privacy safeguards. The "Judicious Use of Surveillance Tools in Counter-Terrorism Efforts" (JUSTICE) Act advocates the "least intrusive means" of information collection and imposes many limitations on the process. "One of the most significant aspects of the JUSTICE Act is that it will remove the retroactive immunity grants that were given to the telecom companies that participated in the NSA warrantless surveillance program. The companies that cooperated with the surveillance program likely violated several laws, including section 222 of the Communications Act, which prohibits disclosure of network customer information. The immunity grants have prevented the telecommunications companies that voluntarily participated in this program from being held accountable in court."
Cue the flying monkey right in... (Score:1, Insightful)
this is going to end well. I really hope that the crazy right wing are too tied up with healthcare reform to figure out that another one of their favorite intrusions into civil liberties is about to be abolished.
ex post facto (Score:1, Insightful)
Nothing to see here, move along... (Score:2, Insightful)
Their guy got elected president, but has said that he doesn't support legislation like this. In many ways, Obama is only slightly different than Bush. This is fodder for rabid supporters, but doesn't have a snowball's chance in hell of actually passing.
It's also a damned stupid thing for them to do, because pandering to the fringe here only further hampers their party's electoral chances next year.
But, it's all good, I suppose, because the Administration's actions on the possible prosecution of government employees (CIA) sends the signal. Being hellbent for vengeance makes for an awfully short political future. In this case, it'll likely be for the President.
Re:Cue the flying monkey right in... (Score:3, Insightful)
If you really believe that the left is less intrusive of civil liberties than the right, you just don't have enough experience with the left. Or you're willfully ignoring it. They just usually attack different civil liberties than (some of) the right attacks, but you can bet your bottom dollar that once they have their highest priorities taken care of, they'll go after the rest. One of the first to go will be - no surprise - freedom to dissent. That's neither particularly left nor right, governments of all stripes tend to dislike criticism and will suppress it if they can, by any means they can.
Don't believe any of that? Try living and working in a communist country for a while. It'll open your eyes.
Re:is it constitunitional? (Score:4, Insightful)
Re:JUSTICE (Score:4, Insightful)
Yes, while I can hope that this is actually a bill with no hidden gotchas, given it's using a red hot item for it's ticket in, I would expect all sorts of nasty DMCA like shit hidden it's recesses.
Re:Cue the flying monkey right in... (Score:3, Insightful)
Ok, so the government says to the telecoms "We need access to prevent terrorism, don't worry it's all ok." The telecoms say "Ummm, ok. You're the government so it's not like we can say no, and I guess we don't want any more planes crashing into buildings and stuff." Now the government is saying "Oh, remember when we said not to worry, it's all ok? Well, it's not ok after all." Now the telecoms are all like "WTF?!?!"
It's the same thing as when the white house said to the CIA "Torture those terrorists because they might know about a really bad terror plot. It's really important. Trust us, it's ok" So the CIA guys go "okey dokey, one waterboarded terrorist coming up". Now the government is all like "Um, sorry it wasn't ok. Now we're going to prosecute you CIA guys" and the CIA guys are like "WTF?!?!?"
Seriously, it's not the telecoms, it's the government. End of story. Our government doesn't have a freaking clue one way or the other. It's either torturing terrorists or giving them sympathy cards.
Re:ex post facto (Score:1, Insightful)
I don't think the idea here is to actually punish the telecom companies, (I don't think that was ever an intention) but to force them to testify and provide public record of wrongdoing.
Really, how could they say no? When bush era pseudo-secret police ask you to do something, presumably under the guise of "catching terrorists" what sort of options do you have?
Clearly something bad went down. I've got my money on "current political party in power using NSA wiretaps to spy on political opponents".
Re:is it constitunitional? (Score:5, Insightful)
The durable facts that matter is that they committed an offense at the time it was illegal.
After the fact, they can be granted immunity, and it can be repealed, repeatedly even. The fact that they broke a a law that existed at the time cannot be changed. Only the present enforcement of the past violation can be changed.
They cannot of course change the definition of what was illegal in the past, or the scope, or the punishment. THAT would be unconstitutional.
Re:Devil's Advocate (Score:5, Insightful)
Because they should have said:
"Come back with a warrant"
In my job I have said that to police officers, well really I said "You will have to speak to our lawyer". Which is really just another way of saying the same thing.
JUSTICE for both sides (Score:4, Insightful)
Probably those telcos aren't exactly saints, but here the blame is put in the wrong target.
Re:is it constitunitional? (Score:3, Insightful)
If the TELCOs broke the law by willingly participating in the warrentless wiretapping, then there is NOTHING retroactive about this. What IS unconstitutional is that there was an act passed by congress saying that the TELCOs cannot be punished.
Care to back that up with a citation? Article 1, Section 9 of the US Constitution prohibits the passage of ex post facto laws, which are those that criminalize an act which has already occurred (or increase the punishment for an act occurring prior to the legislation). The legislature most certainly can decriminalize prior acts, however. To do so is not ex post facto, because it does not impose a penalty on anyone for acts already committed. This occurs frequently. It is not clear, however, that congress could now re-criminalize what it previously granted immunity for - to do so may implicate 5th and 6th amendment issues if the responsible parties have disclosed information about their actions in the meantime in reliance on the immunity granted by congress. Even though the wiretapping was illegal when they did it, congress' grant of immunity may not be constitutionally reversible.
Re:Cue the flying monkey right in... (Score:5, Insightful)
The Nuremberg defense did not work the there, and should not be allowed here either.
The CIA folks should get to join the telcom CEOs in jail. Just because your boss told you to do something illegal does not make it right nor legal.
Re:Cue the flying monkey right in... (Score:5, Insightful)
Obama will not allow it (Score:1, Insightful)
Obama initially opposed the retroactive immunity bill, but switched his stance before the vote (and received contributions from the telcos for it, just like all the flip-flopping congressmen did).
Having been bought, he won't risk buring any important bridges by biting the hand that fed him. Expect him to veto this bill (if it ever gets to his desk, which it probably won't, for the same reason given above).
Re:Cue the flying monkey right in... (Score:2, Insightful)
Let's say these evil telecom companies are charged. What then? Throw the building into jail? Of course not.
So what will happen is:
1) some executive who cooperated with his government will be thrown in jail (that's really going to improve your life, isn't it?), and teach everybody to stand up and resist any cooperation with the government (join your local militia today!).
and,
2) the telecom companies will get a gigantic fine to teach them a lesson! $50 zillion dollars to the government! That'll show them! Just don't be surprised when your next phone bill comes and there is a $25 "fine retirement surcharge". They'll need to get the money somewhere and take a guess where it's going to come from.
The bottom line: The only people getting screwed are people who only followed instructions from the government, and every single customer of the telecoms. The only people benefiting from this, are lawyers and Washington - the people directly responsible.
So yeah - let's go get those telcos and show them who's boss!
Re:Devil's Advocate (Score:4, Insightful)
Pardon? (Score:2, Insightful)
I have to wonder if the telcos overheard something compromising and that's why Obama flipped.
Re:Devil's Advocate (Score:5, Insightful)
If someone demands they break the law at gun point, call the cops. Since that's not the case here,
If the government says "Give us this thing the law specifically requires you to demand a court order for", you should... demand a court order.
If they say, "Give it to us without a court order, or we'll shut you down", ask how they intend to shut down a major telecom without a court order. Try not to giggle.
Nobody in their right mind thought the alternative was "being forced to close" Notably, Qwest didn't. They seemed to have mastered the phrase "No, that's illegal."
They were legally required to not allow these wiretaps without a court order. This requirement was supposed to hold even if the government asked them to do it. This requirement was supposed to hold particularly, specifically, and exactly if the government asked. That's the whole point of the law: The government isn't allowed to ask for this, so don't give it to them.
Cooperation with the government is not the highest duty of citizens or corporations. Nor is it an affirmative defense to any criminal act.
Comment removed (Score:3, Insightful)
Re:Cue the flying monkey right in... (Score:4, Insightful)
If however, the telecoms were forced or coerced or threatened, that's another matter.
Re:Cue the flying monkey right in... (Score:4, Insightful)
Allow me to explain.
So you're equating bugging...
From GPP's post: "The CIA folks should get to join...in jail." The CIA was torturing people who have never been convicted in either a civilian court or a military tribunal. So much for "innocent until proven guilty"! And you bought right into it. When the telcos started delivering communications to the Feds without judicial oversight, they became guilty of breaking the law, too. Is gassing someone for their ethnicity equivalent to aiding and abetting illegal wiretapping? Of course not. But both are violations of the law, and both should be punished under the law. The punishment should reflect the severity of the crime (gassing > waterboarding > illegal wiretapping), but it's completely stupid to argue that, since wiretapping is not nearly as evil as gassing families of Jews, those who assisted with the wiretapping should receive a "get-out-of-jail-free" card.
...Al-Qaeda operatives...
Ummm...alleged Al-Qaeda operatives. Refer to my comment above.
/. about racial profiling to see if the same thing has happened in the U.S. Or better yet, watch the TSA's propaganda, excuse me, "training videos" that flight instructors have to watch every year if they want to remain legal. When I watched them, I wasn't sure if I should laugh or be horrified that they essentially are telling flight schools/independent instructors to be suspicious of people of Arabic heritage.
Furthermore, Nazi Germany did, in fact, use similar tactics to rile up the German people against the Jews -- identify a bogeyman, play on the people's fears, then stir up a nation to villify an entire race of people. Read the comments here on
Re:ooh (Score:3, Insightful)
Re:ooh (Score:3, Insightful)
#1: obey the law and require the government to actually take the trivial steps required to get warrants in a FISA court. You protect the public's rights, protect your own backside, and force government to follow its own rules.
#2: break the law and become criminals. You break the law and encourage the intelligence community to be lazy (get everything and sort through it later).
How is this a difficult choice again? #2 really doesn't help anyone. The only explanation I can think of for companies bending so easily is if they did so in exchange for the government looking the other way about something else. I'd be interested to find out what. :-)
Does anyone else find that kind of creepy? (Score:3, Insightful)
Having all these bills with names like "USA-PATRIOT" and "JUSTICE" (and a few I can't remember offhand) does sound rather Orwellian. If Britain is "sleepwalking into 1984", then the US seems to be racing towards it as fast as possible...
Re:Cue the flying monkey right in... (Score:3, Insightful)
The idea of Nuremberg is that you cannot hide behind what the government orders.
Well, not if you lose, anyway.
Re:Cue the flying monkey right in... (Score:5, Insightful)
Comment removed (Score:3, Insightful)
Re:ooh (Score:3, Insightful)
I just want to say something to everyone who has replied: I'm not saying the telcos shouldn't be held responsible, I'm just saying that if they knew it was illegal and immoral, you better damn believe the government knew it was illegal and immoral too, and we shouldn't let them off the hook so easily just because they introduce legislation to protect themselves.
Re:Cue the flying monkey right in... (Score:4, Insightful)
The point here is that the Government previously said it was legal. Then after the fact, pull the rug out from underneath organizations in order to prosecute them.
"Da Gubbmint" is not a single entity. What defines what is legal are the LAWS of the land, not officials who are supposed to enforce them. Officials frequently break the law, and just 'cause you worked with a bad official doesn't mean you are protected.
You aren't protected, even if the bad official is the president. You break the law, you pay the price.
There is no doubt that the telecoms have some of the best legal advisors in the land, who should have informed the executives that the government requests were NOT in accordance with the laws of the land.
And they weren't. Warrantless surveillance, in numerous forms, has been found many times in history to clearly violate constitutional principles. The competent legal representatives should have advised the telcos to STEER CLEAR. But instead, they stuck a deal.
And the telcos need to pay.
Re:Cue the flying monkey right in... (Score:2, Insightful)
Yes I do think the left has a much better record. Especially when it comes to public dissent.
Clinton had non-screened town hall meetings throughout his presidency, where he took questions from everybody.
Bush had screened fund raising events composed primarily of supporters, while any opposition was at a 'free speech zone' 3 to 5 miles away, or if you try to represent yourself as supporters, but then have the wrong bumper sticker on your car, then you get unceremoniously ejected. Even Fox news reported on this. http://www.foxnews.com/story/0,2933,153720,00.html [foxnews.com]
With Obama, you again have non-screened town hall meetings, and people think it's cool to bring a weapon. And if you have the proper paperwork for that gun, they let you stay.
And yet you specifically mention public dissent.
Re:Cue the flying monkey right in... (Score:3, Insightful)
I'm sorry, did I not mention that the paper work is classified as national security secrets and it would be a felony for anyone at the telecoms to disclose that information punishable by 5 to life with the possibility of the death sentence?
If I did fail to mention it, that would be because it's only reported all over the place that Bush classified the documents. Most Bush bashers claim he only did it to hide his tracks from FOIA and others ventures. Obviously, it's more then that because Obama has been president for 9 months or more and not only are they still classified, Obama sent the justice department to court to defend the telecom immunity law back in feb when the EFF challenged it unsuccessfully. I sort of just assumed it was already known to anyone paying attention.
Ignore the facts and make silly statements elsewhere.
Re:Cue the flying monkey right in... (Score:3, Insightful)
Maybe, if you're talking about some hypothetical conversation between the NSA and the telecom people before they agreed to do what the government wanted. It sucks for the telecoms, and it may even get them at least partially off the hook come trial time, but then again that's why these massive corporations have general counsels. Chances are what they really did was to weigh the illegality of the actions against the potential monetary harm that might come their way from pissing off the government and decided they didn't care all that much about the law.
That said, in public "the Government" has done no such thing. In fact exactly the opposite; a grant of immunity is the legal of equivalent of "okay, so there's a pretty good chance the courts will bitchslap you for this, but we're not going to let that happen." If the actions were clearly legal, immunity wouldn't have been necessary. You don't need protection from prosecution for something that's not illegal.
In any event, as I'm sure you've often seen quoted, "ignorance of the law is no excuse." If I tell you murder is perfectly legal and you go and murder somebody, it doesn't get the off the hook. If the government tells the telecoms that what they're asking is perfectly legal and they do it, it doesn't get them off the hook. It was illegal or not regardless of who said what. All that matters is what laws were on the books when it happened.