Monday, December 17, 2007


Albeit, probably only a small one.

Late today, from the e-mail I got about 8:30 PM CST, Harry Reid tabled the FISA reform bill due to the controversial terms. Thank you to Senator Dodd for leading the fight and thank you also to all the senators that added your voices. Now we have time to make sure this piece of legislation is a well thought out bill, and not just rushed through the Senate without anyone really reading it.

For those of you who haven't heard much about this bill, it is a follow up to a very temporary (and poorly written, IMO) piece of legislation the Congress pushed through at the end of last year before the Democrats took control. At the time, it expanded the eavesdropping abilities of federal agencies so that they would not need a warrant in most cases, and those being spied on would never know. This monitoring was supposedly targeting only foreign nationals here in the US, but report after report shows many abuses of this no warrant loophole. Fortunately, the Democrat minority at the time was able to attach a one year limit on the bill, leaving it to expire this coming February.

Unfortunately, the new bill has added more bad legislation. This new bill also includes amnesty for telecom companies, with the amnesty reaching back 7 years. This is an attempt to cut off investigations into the eavesdropping program that was brought to light back in early 2006 (and started this reform push). Twelve total amendments were also proposed for this bill, which the AP is not going into yet.

The core of the bill, however, I do agree with. Here is the short, short version ( doesn't allow for direct links to the bills, but search for SB 187 to read the full text):

  • It starts out adjusting how judges are appointed for the FISA court.
  • Next it authorizes the FBI, et. al. to hire more lawyers so that they can file requests to FISA more quickly and requires improved training on what electronic surveillance is allowed.
  • Next it widens the period of time between when monitoring starts and when the agencies need approval of the monitoring from three days to seven.
  • It then very explicitly states that if any intercepted communication someone in the US, and it isn't sent through FISA, it cannot be used.
  • Then it sets up heightened Congressional oversight and instructs the Supreme Court to expedite any appeals related to the "Terrorist" Surveillance Program.

All in all, fairly reasonable requests. More people to file the requests means it will actually get done, better training should lead to better enforcement, more clear rules should make it easier to train and follow the rules, and better oversight should keep abuses to a minimum. (I know, many uses of should...). Extending the time a monitoring program can be open is questionable, but a fair concession to Bush and the agencies if they are claiming they need to ignore the law because it doesn't give them enough time to file.

The problem is largely the immunity clause that is being proposed as an amendment (unfortunately I can't view the text of it in Thomas, because it hasn't yet been approved). This is being proposed to free the telecoms from liability for having, as is being charged in numerous law suits, broken the law in allowing these government agencies to spy on US citizens without a warrant. This has been going on at numerous companies since early 2001 (if not before) - before 9-11 and the "War on Terror". Most major telecommunication companies are implicated in this. In fact, a former worker at AT & T has testified that all major offices (including one not far from me in Bridgeton, Missouri) have rooms where all internet traffic routed through these buildings (about 90% of internet traffic) is split and a copy sent directly to the NSA. And that is 90% of all internet traffic, not just those people who pay AT & T for a connection.

It can be argued, as Senator Arlen Spector is doing, that these companies were just doing what the government asked them to do; that they shouldn't be held responsible. However, There is a company that rejected the NSA requests. Qwest refused, and faced consequences for doing so. They lost billions of dollars in government contracts for doing so, but they knew the law and stood up for it. Google has also rejected warrantless requests for search records from government agencies (although their human rights lapses in China tarnish this a bit). This means that there was either a lack of knowledge of the law on the parts of these companies (not an excuse legally, and probably not true given the size of their legal staff...) or they decided to ignore the law in the interest of profits. Neither one of these should let them off the hook. Yes the government was to blame, and it did a fair bit of illegal stuff pushing its weight around as it did, but it takes two to tango.

P.S. For those of you interested in privacy, please check out my sidebar on PGP, and if you want to test sending encrypted email, or just need a walk through, feel free to contact me at trianglman (triangle with no "e") at gmail dot com.

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