[Update] The above highlights our dismay that Rockefeller and others in the Senate would cave so easily. They grant the astonishing precedent of retroactive private sector immunity for complying with Executive direction to violate clear statutory law. Should the Senate ratify the SSCI’s poor decision, given the failure of House RESTORE Act, it’s likely this precedent would undermine Congress’ status as a co-equal branch (and drag down the Judiciary with them). Not to mention the little thing called the 4th Amendment and American citizens’ protection from a rogue regime here at home. We didn’t mean to imply, however, that the telco immunity was the only problem with Rockefeller’s Senate ‘compromise’ with the regime — indeed the Senate side was expected to give it.
The original FISA Court ruling which triggered all this sought to deal with the regime’s untrammeled reaching for ‘foreign’ communications data which passed over a U.S.-based server or switch. The decision apparently sought to put the surveillance within a legal framework. You may recall that earlier this Spring, the regime tried to ward off any interference with its surveillance by pushing the farcically named PROTECT Act through the Democratic Congress. The Democrats caved and approved it before the August recess. This largely gutted the FISA Court ruling according to sources.
Now, it is true that when FISA was enacted in 1978, there was little anticipation that the U.S. would be by both design and accident the temporary hub of global digital communications traffic, both foreign and domestic. And it is also true that as negotiated originally, FISA never intended to restrict collection activity directed against non-U.S. citizens abroad.
This new Rockefeller Senate compromise apparently embraces the regime’s PROTECT Act with some slight modifications to allow some vague tip of the hat towards oversight. Initial reports indicate that this apparently was the trade off that Rockefeller and others thought worth undermining the Senate itself. But, we know from Verizon’s recent confession, the regime has been asking for more. Not only for the carriers to turn over forward primary set ups involving foreigners, but secondary (teriary?) data on call/communication set up/information. Now, frankly, the Stiftung has some serious doubts about the real utility of this approach ( and even the regime’s ability to turn all that data into useful information), but Verizon itself claims as a carrier it is not capable of meeting all the government’s requests (although AT&T was noticeably silent on this point).
We’ll need to see the fine print. But if initial reports are correct, Rockefeller’s feeble clutching at a sham agreement for such tenuous (and meaningless) “nods” to the FISA Court is typically shortsighted action by contemporary Democrats. In exchange for the permanent ratification of the PROTECT Act in large measure? And the acknowledgment that private actors deserve immunity for breaking clear statutory law when commanded by the Executive? One can’t expect a whole lot from a man who, after meeting with Cheney and disagreeing with him over illegal wiretapping, merely wrote Cheney a “stamping my foot” letter and put a copy in his desk drawer for a couple of years.
It is not a good day when one must place one’s hope on the Senate Judiciary Committee. Back in 2001 we tried to warn to some of Leahy’s Committee staff about the PATRIOT Act and mention potential long term problems (sadly born out). There was no traction. The impulsive rush to act was too strong. (Yes, Dear Reader, you may forget that the PATRIOT Act passed a Democratic Senate and Leahy then as now was and is Chairman). Still, one must live in hope.