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New "JUSTICE" Act Could Roll Back Telecom Immunity
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."
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.
Non impediti ratione cogitationus.
However the constitutional protection against ex-post-facto laws would keep those companies from being charged with what they did in the past I would think. Or not, IANAL
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.
"but aren't retroactive laws mostly unconstitutional?" So are unconstitutional laws to begin with.
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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.
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.
I work for the Department of Redundancy Department.
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.
The ones that started the problem, from workers of the NSA all up to G.W.Bush, passing for all in the congress that voted for that law, are accountable in any way for that privacy violations?
Probably those telcos aren't exactly saints, but here the blame is put in the wrong target.
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.
I am a geek attorney, but not your geek attorney unless you've already retained me. This is not legal advice.
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).
Please mod this up some more (it's only on +3 now). The executive branch is not meant to be a dictatorship. If they come to you and ask you to do something that doesn't seem legal, then the correct response is to ask for confirmation from one of the other two branches of government, most commonly the judiciary. The the courts agree that the President has the power to ask you to do something, and it turns out that they are wrong, then you should have immunity. If you just did what the President asked without bothering to check that it's legal, then you should not.
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I have to wonder if the telcos overheard something compromising and that's why Obama flipped.
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.
Sometimes it's tough to do the right thing. Life's not fair, Santa Claus is really your mom and dad, etc. News at 11:00.
MCSE? No, sir...I don't do Windows. Yes, I am an idealist. What's your point?
#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. :-)
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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...
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.