FISA extension and telecom amnesty

Few people have been on top of the extension of FISA like Glenn Greenwald. As a quick overview for folks that haven’t been paying attention to the issue:

  • Late last year a real potential problem with the Foreign Intelligence Surveillance Act (FISA) (as written in the 70s and amended after Sept 11) was recognized. Namely, communication between two foreign entities that was routed through the US was subject to the law’s requirements for a court order. This was never the intent of the law and largely crept in due to the routing of Internet traffic through major US networking hubs
  • In addition to correcting this, the Whitehouse and the Republican congress pushed for a change to FISA that went beyond correcting the oversight and significantly extended the ability of the government to spy on citizens.
  • Congress couldn’t pass this permanently, but did pass a six month bill before the August recess, in large part because of scare tactics used by the FBI (releasing warnings of predicted attacks in DC)
  • Six months was up last week and the Whitehouse was pushing to: a) correct the known oversight, b) extend its ability to spy on US citizens without court order, and now they’ve added c) grant retro-active immunity to the telecommunications companies for illegally helping the government spy both before and after Sept 11th. And of course, if they don’t get all of this, we’ll die in our sleep, murdered by terrorists.
  • The Senate caved and gave the Whitehouse everything it asked for.
  • Surprisingly, the House didn’t and we’re now seeing extra pressure claiming that we’ll all die and it’ll be their fault. This is of course BS, but that’s the state of discourse in the country.

I don’t have much to add on the spying per se, but I will admit to being particularly offended and disturbed by the telecom immunity issue. Essentially, these companies started helping law enforcement to monitor calls, read emails, etc. well before September 11th. Their actions were not scared or patriotic, they were largely motivated by greed.

Even if this were not the case. Even if they only started cooperating after September 11th, there is no excuse for allowing extra-legal monitoring by law enforcement in violation of the 4th Amendment. While much of the monitoring may have been intended to track down terrorists, we know that tools of this nature are never used only for their intended purposes. They are always used by someone trying to get a little extra edge in a non-terrorist case or by a cop wanting to spy on a girlfriend.

Consider the following. I was the IT Security Officer for the university back in 2001. When September 11th occurred, everyone wanted to be as cooperative as possible with law enforcement within the bounds of the law. Within the bounds of the law was an important caveat. Late September of 2001, I received a phone call from an individual who identified himself as being an agent with the FBI (note, none of this is confidential – there were a few times that I was asked/instructed to sign the equivalent of an NDA; for reasons that will become obvious, this was not one).

The agent asked me for some information pertaining to an investigation on which he was working. I asked him to slow down a bit because I needed to confirm that he actually was with the FBI (and not some random caller) and then I would need a court order for the information (because, hey, I don’t want to be sued, he wasn’t asserting that this was an emergency situation, and my failure to follow reasonable procedure meant it might be me personally being sued, not the university).

The agent then starts to get very defensive and plays the terrorist card. “This person could be a terrorist, and if you don’t help me, who knows what could happen?” Taking things one step at a time, I asked for his FBI identification number. He wouldn’t give it to me. He did give me his name and a phone number I could reach him at. I called the FBI. After a couple of false starts, I was finally able to confirm his identity.

It turns out that he was sort-of an agent. Actually, he was an agent of the Bureau of Alcohol, Tobacco and Firearms (ATF). Ostensibly, he was on loan from the ATF to the FBI in order to assist them in their cases. Instead, he was working on an ATF case and trying to use his newfound FBI authority and the tragedy of September 11th to get information that he could not normally obtain. If I remember correctly, the FBI told me not to call him back and that they would handle it internally.

Granted that all of this occurred before these agencies were pulled into the Department of Homeland Security and the processes may be better. However, any time someone claims they need new powers to keep us safe from terrorists, I remember this incident and become a little more wary. If there is a demonstrated need for a new law enforcement power, then it should be discussed, weighed against civil rights and the constitution, voted on and enacted if passed. The sum total of the argument for the power should not be, “we need it or you will die!”

p.s. C&L and Mark Fiore have produced a good/amusing video illustrating this tactic.

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