Friday, January 25, 2008

...Or You Could Call a Congressman

[Ashley, a 2L doing a field placement at the EFF, asked me to post what looks like a media release. Hyperlinks slightly modified by me. Enjoy. -- Armen]

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As you may or may not know, this Monday there will be a vote on an update to the Foreign Intelligence Surveillance Act (FISA). The current version awards both prospective and retrospective immunity to telecomms who assisted in the NSA warantless wiretapping program.

EFF has started a website, where users post photos and videos showing they are against telecomm immunity and government spying. We are trying to create as much media buzz as possible before Monday's vote.

Please, please, please take a few minutes today or over the weekend (the rain probably has you stuck inside anyway) to post a photo or a video to www.stopthespying.org. Also, if you could take a second and digg this (free registration required to vote for it) to bring more awareness, we would REALLY appreciate it.


If you'd like more information, visit this website.

4 Comments:

Blogger Tom Fletcher said...

Or... we could not sue companies that help the government during a time of war.

I mean, I don't want to be too glib, but what are we really upset about? Allegedly illegal wiretapping. Who should we blame for that? I submit we blame the federal government.

But do we really want to create a practice of hounding all those who help the government when asked in a time of crisis?

From a policy perspective, I'm inclined to think no. In a time of danger, we want people to say, "Yes, Uncle Sam, how can I help?" We do not want them to say, "I see there's a war on Uncle Sam, but I'm concerned I'll be sued out of existence if you tell me to do something that turns out to be illegal so... no."

Admittedly, so many of our conflicts stem from the fact that the United States is in a state of war, but without a declaration of war because there is no state to declare war against. But if you're willing to accept that we're in a time of war (for my argument, please just accept it as a given), I think it's insane that we're actively working to disincentivize people from helping in the war effort.

Riddle me this: what if various universities refused to help with the Manhattan Project for fear that a nuclear bomb's use would later be considered a war crime, and them aiders and abettors? What if various companies and universities did not participate in DARPA programs because the technology developed could be used for wiretapping?

Before we respond that wiretapping is bad in a kneejerk fashion, I believe we should seriously consider the scope of aiding & abetting liability for government cooperation.

Sigh. Feel frame to begin the anonymous flaming.

1/26/2008 6:16 PM  
Blogger Tom Fletcher said...

Some additional thoughts developed in an email exchange:

"I think your essay provides some good context for the debate, but I don't think the context you provide addresses two key points.

1. The Church Report excerpts you provide are about domestic spying and its abuses - not foreign wiretapping in wartime. I think that's the nub. I don't think the history developed in a time of domestic unrest and inappropriate spying translates to the national security context well.

2. Suppose the plaintiffs win. The damages awards of no less than $1,000 or $100/day are crippling. Does any good come from bankrupting nearly every telecommunications company in the country, as a policy matter? This would be an enormous disruption to the national economy, which is never, but especially not near a recession.

Keeping up the pressure on inappropriate wiretapping is important. But I don't think that, as a policy matter, we should be gunning for the peripheral players. This problem is started and solved by dealing with the government's practices. Harming (a) the incentives of civilians to help in a war effort and (b) the telecom sector of the economy do not seem like laudatory goals to me."

1/26/2008 7:12 PM  
Anonymous Anonymous said...

what are we really upset about?

How about invasion of our privacy? Unwanted intrusion into our personal lives by private industry and the federal government? Maybe you don't mind if someone's listening in on every conversation you have, but I personally am uncomfortable with it.

Who should we blame for that? I submit we blame the federal government.
Obviously the federal government is partly to blame, but they have sovereign immunity and we can't hold them accountable in a court of law -- we have to do it at the polls. But why do you think the phone companies shouldn't also be blamed for this?

In a time of danger, we want people to say, "Yes, Uncle Sam, how can I help?" We do not want them to say, "I see there's a war on Uncle Sam, but I'm concerned I'll be sued out of existence if you tell me to do something that turns out to be illegal so... no."

This creepy sentiment is reminiscient of the same blind obedience to power that led to some of the most oppressive and civil-liberties-infringing regimes in history. Hasn't history taught us anything? We need to be extra vigilant to intrusions on our civil liberties in times of war.

But if you're willing to accept that we're in a time of war (for my argument, please just accept it as a given), I think it's insane that we're actively working to disincentivize people from helping in the war effort.

This is exactly the problem -- under our current definition of war, we're ALWAYS going to be at war. It's like 1984.

Riddle me this: what if various universities refused to help with the Manhattan Project for fear that a nuclear bomb's use would later be considered a war crime, and them aiders and abettors? What if various companies and universities did not participate in DARPA programs because the technology developed could be used for wiretapping?

There's a difference between developing technology that could be used for wiretapping and actively wiretapping people's cell phones. If either of those projects involved an intrusion on citizens' civil liberties, I certainly hope they would speak out and refuse to go along with the plan (at least until adequate safeguards were in place).

1/27/2008 10:29 AM  
Blogger Ashley said...

And for the record, prospective immunity for the Telecoms is practically guaranteed to pass.

The EFF campaign is about retrospective immunity. AT&T and some other large telecoms broke FISA law as it existed, someone told, they were (maybe) gonna get rightfully hit with damages under FISA, and then took their fight to congress to circumvent the judicial system.

Nobody's saying telecom's shouldn't help the government in this "war on terror". All AT&T had to do was ask for a FISA court warrant. They had fair notice they had to do this, it was in FISA.

I don't for a second believe that formality is overly burdensome on either side. As for the Telecoms, Verizon Wireless didn't have trouble asking for a warrant. As far as the government goes, if it was really all that important that they wiretap everyone without a warrant, they would probably bother to pay their telecom bills.

It seems there's a new scandal every week with this administration. I guess the key question is how far do they have to go before people stand up and say "enough"

1/27/2008 10:58 AM  

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