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Why I Haven't Blogged on the FISA Bill:
I haven't been blogging on latest developments in the FISA bill and telecom immunity, and I thought I would briefly say why.

  In my view, the issue seems to have entered the realm of political symbol rather than law. The President is making overblown and excessive claims about the need for the bill. (National security is at risk!) On the other hand, critics are making overblown and excessive claims about its harms. (This will give them the greeen light to break the law again!) It seems to me that the stakes on both sides are an order of magnitude lower than either side is pretending they are. That's not necessarily a bad thing for democracy. A clash of the branches is healthier for democracy than one branch rolling over and playing dead, even if it's mostly posturing. But it doesn't lead to a whole lot of interesting blogging on the merits.

  One exception to that rule is that there have been some very interesting clues from the public debate about how the Protect America Act has been implemented. Back when the Act was new, we spent a lot of time trying to figure out just what the heck in meant. Sounds the Administration have been making give us some ideas; in particular, it sounds like they did *not* enact a one-size-fits-all monitoring protocol, but rather have a series of monitoring protocols on a smaller scale. That's been my impression at least; given all the political posturing, I haven't been following the issue very closely.

  UPDATE: Some readers suggest in the comment thread that the views of critics of retroactive immunity aren't overblown. I addressed this issue in a long post back in December: How Much Difference Would The Proposed Immunity Deal Make?
Viceroy:
That's not very persuasive. Any legal issue can enter the political realm when the exec steps in (think segregation). If all blawggers took a hands off approach at this point, where would the world be? (partially in jest!)
2.20.2008 4:03pm
Morat20 (mail):
My concern is the retroactive immunity -- there's a rather high bar for me if you want to convince me that okaying past lawbreaking (especially before said lawbreaking is even determined in court) is a good idea.

It seems like a bad idea, especially given the fact that there appeared to be a number of easy ways to do the same thing and comply with the law (if nothing else, Congress undoubtably would have agreed to significant changes in FISA laws in the wake of 9/11 -- they agreed to most of what Bush demanded five years later, even after abuses had come to light).
2.20.2008 4:36pm
Christopher M (mail):
Prof. Kerr: Could you explain why you think the claims about the harms arising from the telecom immunity provisions are "overblown and excessive"? They seem quite reasonable &serious to me.

Do you disagree that providing this immunity now will set a precedent that will make it more likely for companies in the future to act outside the law based on the executive's assurances that all will be well? Do you not think it's important from a general rule-of-law standpoint to avoid giving blanket retrospective immunity for secret violations of federal law?
2.20.2008 4:38pm
Oren:
If I believed that the POTUS would faithfully execute the new law (there's gotta be something in Art II about that) then yes, the stakes aren't that high. Since this president has shown neither the desire nor the ability to stay with the confines of written law, a bill that effectively legitimizes his past contempt for Congress becomes much more important than its terms would literally suggest.

Perhaps it is ultimately symbolism that I'm referring to but the fact is that the President had a duty to come before Congress in 2001 and tell them that FISA needed amending (politically speaking, he would have also gotten a better deal). Congress needs to reassert that right in one way or another.
2.20.2008 4:38pm
Kelvin McCabe:
I would have to respectfully disagree w/respect to the following claim, "It seems to me that the stakes on both sides are an order of magnitude lower than either side is pretending they are."

Lets not be coy: Federal laws were ignored. The warrantless wiretapping "Terrorist Surveillance Program" DOES in fact implciate many federal statutes, as Glenn Greenwald and others have repeatedly pointed out. The present debate over immunity has nothing to do with national security, and all about keeping information/methods secret.

To me, the debate isn't over FISA its whether we live under the rule of law or not. Or, if some lawbreakers (corporations acting at behest of gov.t agents) get/receive more preferential treatment than others. Ultimately, as well, it is also about checks and balances and the theory of almost unlimited executive power this administration seems to grant to itself involving anything 'security' related. Including the right to ignore congressional statutes limiting the executive's power.

If the executive branch wins this fight, telecos get their past/future immunity - what type of precedent does this set? Seems a lot like "its not illegal if the president does it" to me with the added twist - or, "its not illegal if the president asks me to do it for him/her."

If the hype regarding security and the need to renew the Protect America Act is BS, then why is the administration making such desperate attempts to rig the vote? Why all the inflated fear rhetoric? The full court press? What are they trying to keep the public from learning?
2.20.2008 4:39pm
Oren:
Do you disagree that providing this immunity now will set a precedent that will make it more likely for companies in the future to act outside the law based on the executive's assurances that all will be well?
That doesn't seem obvious to me. In fact, given how much of a battle the current immunity provision was (for an executive that was 100% behind it), corporations might decide not to take their chances in the future. At the very minimum, AT&T et. al. are out tens of millions in attorneys fees.
2.20.2008 4:41pm
OrinKerr:
Christopher M writes:
Prof. Kerr: Could you explain why you think the claims about the harms arising from the telecom immunity provisions are "overblown and excessive"? They seem quite reasonable &serious to me.

Do you disagree that providing this immunity now will set a precedent that will make it more likely for companies in the future to act outside the law based on the executive's assurances that all will be well? Do you not think it's important from a general rule-of-law standpoint to avoid giving blanket retrospective immunity for secret violations of federal law?
I blogged about that here.

If you're worried about precedent, I would think the better course is to favor retroactive immunity. If the courts play this out, they will hold that the state secrets bars these suits; the next time, everyone will know it. If Congress acts, the application of states secrets will remain unsettled. Unsettled law is a better deterrent than settled law ruling that no lawsuits can go forward.
2.20.2008 5:09pm
Gary McGath (www):
Retroactive immunity from legal liability sure sounds like a green light to break the law to me.
2.20.2008 5:13pm
cboldt (mail):
-- The President is making overblown and excessive claims about the need for the bill. (National security is at risk!) --

.

There are kernels of truth on both sides of the debate. FISA, as it existed in July 2007, did have significant burdens both to surveil foreign terrorists (couldn't be done without a warrant, see 1801 (a) categories), and action on US based hardware, even if foreign-to-foreign action, also required a warrant.

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But I am one of those who is amazed at the willingness of Congress to admit that it's own civil remedy for violations was worthless. Why leave the civil remedy in the statute, if it puts future cooperation AND the secrecy of surveillance orders at risk?

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The law should strive to be an accurate reflection of the "deal" between the government and the people as to the machinations and conditions precedent to surveillance.
2.20.2008 5:15pm
OrinKerr:
Kelvin McCabe,

The difficulty is, as I explain in the link above, that the legality of the TSP and the TelCo's liability are two separate questions.
2.20.2008 5:15pm
cboldt (mail):
I think the TSP may have been CONSTITUTIONAL, but if conducted as described in public statements (US/foreign, one side suspected terrorist), then the conditions for obtaining a 18 U.S.C. 2511(2)(a)(ii)(B) liability exemption are absent.

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But even while deficient as a matter of adhering to statutory protocol and requirements for warrantless surveillance (and associated certifications), the surveillance may be limited to foreign intelligence gathering.

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I don't think the surveillance was that limited, but the public will never know the extent of surveillance in order to prove that the itchy sensation isn't unreasonable paranoia.
2.20.2008 5:38pm
OrinKerr:
I think the TSP may have been CONSTITUTIONAL, but if conducted as described in public statements (US/foreign, one side suspected terrorist), then the conditions for obtaining a 18 U.S.C. 2511(2)(a)(ii)(B) liability exemption are absent.

Why?
2.20.2008 5:39pm
Morat20 (mail):
OrinKerr: I'm also in favor of some changes to the states secrets concept, seeing as how it's been abused it's entire lifespan -- including, as I'm sure you know, the very case that originated the concept.

As for Oren's concern over AT&T's legal fees -- I'm not that worried, especially as -- IIRC -- even under the pre-9/11 laws, AT&T did not need to determine if the request was legal -- only proper, in that they had the proper requests from Executive. As long as they recieved the proper requests from the DoJ, they were immune from liability.

After all, this was a concern when FISA was originated, and Congress -- with the aid of the telecommunications industry -- made it very easy for telecommunications companies to avoid liability.

Their burning desire for retroactive immunity is due to the fact that the proper forms were not followed -- which is why Qwest refused to play along. As such, they are liable.
2.20.2008 5:42pm
L202:
Sounds like a good topic for class. Let's discuss it!
2.20.2008 5:46pm
CrazyTrain (mail):
FWIW, I think the immunity issue makes sense as a matter of policy but I would vote against it were I in the Congress. As a matter of policy, these telecom companies were, as I understand it, basically told by the Federal Government to comply with the government's likely illegal demands in the immediate wake of 9/11. They were in a terrible position, and I understand why they complied, and it does not seem fair to then say that they should be held liable while the feds get off scot-free. (That's why I liked Arlen Spector's idea of making the Federal Government step in their place.)

The problem with the proposed immunity deal, however, is that it just sweeps everything under the rug once and for all and leaves us -- i.e., We the People, the ultimate sovereign -- in the dark as to what actually happened. Did the telecoms violate the law? Did the executive branch actually order them to? If the answers to those questions are yes, we have a right to know that. However, litigation is unfortunately not the best way to get to the truth sometimes -- especially when there are the classified issues that we have here. If I were in charge, I would say the telecoms can have immunity provided that they and the executive branch cooperate completely with a commission composed of retired judges or something that would have jurisdiction to tell us what happened. That commission would have jurisdiction over classified information and would then be able to issue a report to the public where it avoided publishing information that is truly classified.

Of course, this will never happen, but it strikes me as the best solution to what I believe is a real problem -- our government may have been systematically violating the law for years and ordering private parties in secret to violate the law. Now, even if you think that was not the case, you should agree with my approach as well. We the People have a right to know what our government is doing, especially in this very sensitive area where our most basic privacies are at issue. I don't see how a free citizen can object to that. And "9/11, 9/11, 9/11, muslims, terrorists" is not a legitimate or thoughtful objection.
2.20.2008 5:52pm
Le Messurier (mail):
Oren said:

In my view, the issue seems to have entered the realm of political symbol rather than law. The President is making overblown and excessive claims about the need for the bill. (National security is at risk!)

How do you know that the President's claims are "overblown and excessive"? Your profession deals in evidence so do us the courtesy of providing it. I'd like to hear some convincing evidence rather than "in my view" assertions and opinion on such an important matter.
2.20.2008 5:53pm
CrazyTrain (mail):
One amendment to my comment re liking Arlen Spector's idea. I like it better than nothing, but think it is an imperfect solution as I don't believe that litigation is the best or most efficient way to get to the truth here. It is too messy and the Federal Rules and civil litigation were simply not designed for the sort of exercise I have in mind.
2.20.2008 5:56pm
cboldt (mail):
-- Why? --

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Because the protocols under FISA, whether with or without a warrant, require submitting a description of the search to the FISC, and the category of search involving a foreign terrorist is NOT within the categories of entity amenable to 1802/warrantless searching.

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The 18 U.S.C. 2511(2)(a)(ii)(B) exemption requires a certification to be "in order" per statutory terms. E.g., an assertion of "AUMF" or "Article II" is not:

that no warrant or court order is required by law, that all statutory requirements have been met


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Also, at least one certification was made under WH counsel signature, not AG signature. At least according to the Senate Select Committee on Intelligence report that expresses why retroactive immunity is justified.

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As to "a certification in writing by a person specified in section 2518 (7) of this title" being read to admit more persons to "authority," i.e., persons other than the AG have authority to order warrantless surveillance, I addressed that in the comments of the thread you linked to.

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BUT, any search that is undertaken for foreign intelligence purposes is constitutional without a warrant, statutes notwithstanding. See period of time before FISA, and Clinton's entry into Aldrich Ames' residence before FISA had physical entry provisions.

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So, the term "lawful" carries a bit of a hidden load with it, as some readers impute "within statute" and others impute "not unconstitutional."
2.20.2008 5:57pm
ejo:
it's a matter of political symbolism until a bomb goes off. can you tell me that our ability to conduct surveillance on terrorism has not been hampered one bit? if you have such confidence, then I guess it doesn't matter if we have such a bill. if you don't have such confidence, then who is blowing smoke for political purposes?
2.20.2008 5:59pm
Randy R. (mail):
I am really surprised that Orin would suggest that it's better to have unsettled law than settled law, on the theory that the former is a better deterrant.

I have an even better deterrent: Act totally crazy. Then people won't know how to react to you and will avoid you. Which is what Orin is suggesting.

I would suggest that settled law is much better for a democracy and a civilization than to keep people guessing as to what is legal or not. Dictatorships like to keep people guessing because it distracts them from challenging the powert of the state. Is that what we want here?

Crazy train makes a very reasonable middle ground. But the telecoms can't get off scot-free. If the president asks you to kill someone, and assures you,wink wink, it'll all be okay, do you really think you can get away with that excuse? AGain, that's exactly how distators work, by dolling out immunity for some, and sic the dogs out on others, those who aren't quite so 'patriotic' as others. Or donate as much cash to the presidential coffers.
2.20.2008 6:01pm
AnonLawStudent:

it is also about checks and balances and the theory of . . . executive power

This hits the nail square on the head. Resolution of this question requires resolution of two underlying questions: (i)the power of Congress to statutorily limit the President's exercise of certain powers, and (ii) any requirement that the President obey statutes that he believes impinge on his powers. Certainty regarding private party liability may be preferable; certainty as to the underlying constitutional questions may not. Government actors may push a little, but they also tend to hedge when they fear over-extending. Consider how Presidents have responded to the War Powers Resolution. Be careful of wishing for certainty on these issues. You may not like the answer. See Freytag v. Comm’r, 501 U.S. 868, 906 (1991) (Scalia, J., concurring in part and concurring in judgment):

[I]t was not enough simply to repose the power to execute the laws . . . in the President; it was also necessary to provide him with the means to resist legislative encroachment upon that power. The means selected were various, including . . . the power to veto encroaching laws, see Art. I, §7, or even to disregard them when they are unconstitutional.
2.20.2008 6:33pm
cboldt (mail):
-- I am really surprised that Orin would suggest that it's better to have unsettled law than settled law, on the theory that the former is a better deterrant. --

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I would submit that this depends on who is being "deterred." The administration has argued that public awareness of the TSP (awareness of surveillance occurring outside of statutory boundaries) has harmed intelligence gathering, and puts the country at great risk. Same issue with the SWIFT surveillance.

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Under this theory, it is good to have laws that reflect a FICTIONAL degree of privacy, because it will serve to ensnare the unaware bad guys who study our laws so they can circumvent them. As for the unaware good guys who also study our laws, they are being protected, and have nothing to fear. No harm, no foul.
2.20.2008 6:39pm
Oren:
How do you know that the President's claims are "overblown and excessive"? Your profession deals in evidence so do us the courtesy of providing it. I'd like to hear some convincing evidence rather than "in my view" assertions and opinion on such an important matter.
First off, he's Orin, I'm Oren, they are actually different names. Secondly, the burden is on the President to detail how the expiration of this bill will harm security.
2.20.2008 7:05pm
Elliot123 (mail):
Seems like folks are arguing over a lot of generalities. Can somebody detail a specific harm caused to a specific person by the companies? If not, can someone provide a detailed and specific potential harm done to some unnamed person by the companies?
2.20.2008 7:54pm
Le Messurier (mail):

First off, he's Orin, I'm Oren, they are actually different names. Secondly, the burden is on the President to detail how the expiration of this bill will harm security.

My apologies for the name mix-up. But do you really think it is up to the President to "detail" how the expiration of the bill harms security? In wartime? Do you work for the NYT? God save us!
2.20.2008 7:58pm
Bruce Hayden (mail) (www):
First off, he's Orin, I'm Oren, they are actually different names. Secondly, the burden is on the President to detail how the expiration of this bill will harm security.
But he doesn't need to justify it to us, but rather to Congress, or at least the appropriate members thereof.

The problem with justifying it to the public is that that may disclose operational facts that may endanger the program(s). While that may not bother you, it does the Administration and likely those in Congress responsible for this.
2.20.2008 7:59pm
Oren:
Yes, yes, no and he's too busy right now.
2.20.2008 8:00pm
Oren:
^^ Above was clearly a response to Le Messieur - thought I got it off in time before I could write a serious response.

Bruce, most of the leaks are coming from Congressional staffers so I doubt that public knowledge bothers them all that much.
2.20.2008 8:10pm
Concerned Patrtio:
What is absolutely crazy, and what no one can explain, is why foreign to foreign comms routed through the U.S. need a FISA warrant at all. Read 1801(f)(1) and (f)(2), they both describe either "received by a particular, known United States person" (f)(1) or "to or from a person in the United States" (f)(2).

All the talk out of the Senate and House surrounds the foreign to foreign comms, but if these comms are merely being routed through the U.S., there is no "person" as envisioned by the statute--why are we extending coverage to non-US citizens at all? And why shouldn't we extend immunity to telecomms providing this type of information on non-US citizens?
2.20.2008 8:28pm
cboldt (mail):
-- What is absolutely crazy, and what no one can explain, is why foreign to foreign comms routed through the U.S. need a FISA warrant at all. --

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A given communication taken off equipment in the US isn't known to be foreign-foreign (and therefore OUTSIDE of the definition of "electronic surveillance" in 1801 (f)) until after it is acquired, and some of the communications taken off equipment in the US satisfies the definition of electronic surveillance under 1801 (f)(2)

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States


So, taking communications from a US based site, then examining the contents to see if they are foreign-foreign, will inevitably result in acquiring and reading some communications that are foreign-US, or US-US, and those are "electronic surveillance." Whether those need a warrant or not depends on whether the communications fit within the warrantless categories of 1802, but it's a slam duck certainty that not all them do.

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It's not the foreign-foreign that needs the warrant. It's the other stuff (some of it TSP stuff, US to foreign-terrorist) that, if FISA is followed, will involve a court order.
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The beauty of the Protect America Act is that it redefines "electronic surveillance." Obtaining the contents of international communications is NOT "electronic surveillance," as defined in the law. IOW, the ordinary use definition is replaced, much as a corporation is a "person" in some regards, for purposes of the PAA, acquisition of international communications is NOT electronic surveillance.
2.20.2008 8:48pm
MarkField (mail):

All the talk out of the Senate and House surrounds the foreign to foreign comms, but if these comms are merely being routed through the U.S., there is no "person" as envisioned by the statute--why are we extending coverage to non-US citizens at all? And why shouldn't we extend immunity to telecomms providing this type of information on non-US citizens?


To elaborate a bit on cboldt's answer, when FISA was originally passed in 1978, this provision accounted for the technology of phone calls at that time (mostly satellite). Now, however, the trunk lines often run through the US and the result is that warrants are required when everyone agrees they shouldn't be.

This change is not controversial. As far as I know, there's unanimous agreement to modifying FISA for this purpose. The hold up is that the Administration is demanding much more, especially the telecom immunity.
2.20.2008 9:01pm
Concerned Patriot:
--A given communication taken off equipment in the US isn't known to be foreign-foreign (and therefore OUTSIDE of the definition of "electronic surveillance" in 1801 (f)) until after it is acquired, and some of the communications taken off equipment in the US satisfies the definition of electronic surveillance under 1801 (f)(2) --

I disagree. The communication has already been captured as it resides on the telecomm's server, so that horse has left the proverbial barn. Now, if you mean "acquired" by the government (rather than the telecomm), that would occur the moment the telecomm provides it to the governmental entity.

Also note that the intel oversight laws allow minimization--see EO12333--so the government is allowed 90 days to determine if they may retain the comms, and in this case, to determine if the communication was truly US person or non-US person.

Those same intel oversight rules allow for some some lawful assumptions--if someone is overseas, you may lawfully assume they are non-US persons unless and until there are facts to the contrary.

So, it would seem a properly tailored request to the telecomms for only non-US based IP to non-US based IP communications--communications already "acquired," "captured," or whatever term you prefer--and residual on the communication providers typically retain for anywhere from 30-90 days by practice--would entail only those comms that would fall outside the (f)(2) definition.

Until the PAA, this would not have been within the definition of "electronic surveillance," and since that Act has expired, would now arguably fall outside statutory coverage again.



A whois lookup, or something technologically similar, allows such lawful assumptions of source of origin.
2.20.2008 9:09pm
Concerned Patriot:
"Now, however, the trunk lines often run through the US and the result is that warrants are required when everyone agrees they shouldn't be."

But that's my point: why should warrants be required? If it's not within the definition, then it's not electronic surveillance, so no warrant would be required.

Again, the argument that these types of comms require a FISA warrant crumbles when you add in the word "person," as seen in f1 and f2. The only "person[s]" involved in this example are overseas, as determined by IP. Unless the FISC is calling a mega-server that retains tetrabytes of data a "person" now...
2.20.2008 9:17pm
Oren:
I think the obvious solution is for everyone in the world to start every conversation with the phrase (in the appropriate language) "Hello, I am an American citizen",
2.20.2008 9:40pm
cboldt (mail):
My general impression of the foreign-foreign "argument" is that it's a red herring thrown in to obtain the desired result.

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One important surveillance program was described as foreign-to-US:one-party-a-suspected-terrorist, "TSP" for short. This was undertaken without a warrant. Coming along with this, as a bonus, were foreign-foreign communications.

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But, if FISC finds the TSP requires a warrant, especially as it gets communications with US persons in the US, from hardware located in the US, shutting off THAT also shuts off the bonus foreign-foreign material.

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Then the administration says, "a judge just said we need a warrant for foreign-to-foreign acquisitions" and people direct outrage at "the stupid judge."
2.20.2008 9:41pm
Concerned Patriot:
One important surveillance program was described as foreign-to-US:one-party-a-suspected-terrorist, "TSP" for short. This was undertaken without a warrant. Coming along with this, as a bonus, were foreign-foreign communications.

I'll play intellectually honest...I agree, in that case (foreign to US), either a) FISA warrants should have been required, or b) the AUMF/Kastenberg argument holds sway (inherent executive power).
2.20.2008 9:53pm
OrinKerr:
I am really surprised that Orin would suggest that it's better to have unsettled law than settled law, on the theory that the former is a better deterrant.

I have an even better deterrent: Act totally crazy. Then people won't know how to react to you and will avoid you. Which is what Orin is suggesting.


No, it's not what I'm suggesting. The concern was expressed that statutory retroactive immunity would set a precedent that telcos don't have to worry about the consequences of breaking the law. I was just pointing out that if this happened again, the telcos would have to factor in two questions, not one: first, how Congress would react, and second, how courts would deal with the claims against them. Clear precedents on the latter would enter into the calculus on the latter pretty directly, it seems to me.
2.20.2008 10:25pm
PC:
CrazyTrain:

As a matter of policy, these telecom companies were, as I understand it, basically told by the Federal Government to comply with the government's likely illegal demands in the immediate wake of 9/11. They were in a terrible position, and I understand why they complied, and it does not seem fair to then say that they should be held liable while the feds get off scot-free.


Your understanding is a bit off. According to this Wired article AT&T started building a facility for the NSA days after Bush's inauguration. The administration was asking the telcos to break the law from the administration's first day in office.

My guess is the administration wants telco immunity so the companies don't roll over and show the extent of the administration's lawbreaking, and not even having the fig leaf of 9/11.

Le Messurier:

How do you know that the President's claims are "overblown and excessive"?


The President says that it is critical for the security of the United States that Congress passes a bill, but he is willing to veto any bill that does not include telco immunity. Perhaps you can explain why telco immunity is critical to US national security.
2.21.2008 1:01am
David M. Nieporent (www):
Your understanding is a bit off. According to this Wired article AT&T started building a facility for the NSA days after Bush's inauguration. The administration was asking the telcos to break the law from the administration's first day in office.
Incorrect. It's not "According to this Wired article" at all. According to that Wired article, a lawsuit has alleged that. Very very different than what you said.
2.21.2008 1:27am
John Herbison (mail):
The proposal for retroactive immunity, as I understand it, would require dismissal of some suits that are presently pending. Does the extinguishment of these Plaintiffs' chose(s) in action constitute a taking for which just compensation is required? If not, why not?

I seem to recall a line of cases involving the shortening of a period of limitations for filing suit for damages. IIRC, legislation to curtail or shorten a period of limitation, as a matter of due process, must allow a reasonable opportunity for filing of suit as to causes of action that have already accrued. That would seem to me to be analogous.
2.21.2008 1:48am
Bruce Hayden (mail) (www):
As I understand it, the problem with the domestic interception of purely foreign communications is that the FISC judge determined that if there were any chance that one end of the communications was in the U.S., no matter how small, a FISA warrant would be required. The problem is that the NSA may believe very strongly that both ends of the call were foreign, but couldn't prove it. And that problem is likely a result of satellite and maybe even cellular calls. Land lines are one thing, but more and more calls are cellular, esp. in the 3rd world, and until al Qaeda read U.S. newspapers giving away that the NSA was intercepting their satellite calls, they were using them heavily.
2.21.2008 2:01am
Bruce Hayden (mail) (www):
My view of what the just expired FISA amdt. did for surveillance of international calls was to effectively erase most of the difference between 1801(f)(1) and (f)(2). Technology moved effective interception to within the U.S. since FISA was enacted, and that moved it from 1801(f)(1) to (f)(2). The two critical differences I see between the two subsections are that (f)(1) requires a warrant only when the party w/i the U.S. was a U.S. Person (i.e. here legally) AND was the target of the interception. 1801(f)(2) doesn't require either. Thus, my oft used example of al Qaeda terrorists sneaking across the border and calling home to OBL in his cave. Under 1801(f)(1), no warrant would be required, while one would be required to intercept this under (f)(2), despite all participants not being U.S. Persons, nor the people in the U.S. being targeted.
2.21.2008 2:10am
Public_Defender (mail):
Professor Kerr:

In your previous post, you said that you thought that immunity was probably a good idea because it would get everyone where they would be after several years of litigation. But doesn't that assume that the Justice Department would continue its current strategy? And couldn't an Obama Justice Department take a very different position than the Bush Justice Department?

I think that's the real reason for the "urgency." If the telecoms exceeded the authority conferred in whatever written certification they got, they can count on the Bushies to cover their rear. But they can't (and shouldn't) count on similar protection from an Obama administration.
2.21.2008 6:37am
cboldt (mail):
-- If Congress acts, the application of states secrets will remain unsettled. Unsettled law is a better deterrent than settled law ruling that no lawsuits can go forward. --

.

I don't see a difference either way. Whether the suits are dismissed by Congress enacting a "one time exception" to the law, or by an executive assertion of state secrets, the executive (and Congress) have the same rationale for EVERY time surveillance operates outside of statutory parameters, and a plaintiff claims injury using the civil suit remedy in the statute.

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Any time a suit is filed in court, the suit has the same effect as to risking disclosure of the classified program (tipping off the terrorists), and it makes a telecom reluctant to follow orders, even when the orders are outside the statutory form.

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Assuming that rationale is sound, it will apply the next time, just as much as it does this time.

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And if there is no Congressional dismissal, there will be continued assertion of state secret, as well as "standing."

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The deterrent effect is flowing toward putative plaintiffs. These suits appear to be a waste of energy and funds. Even though, on the surface, the law anticipates they may be brought, if one were to have the unmitigated audacity to actually file a suit, it will be knocked out of the courtroom -- by the full power of Congress, if that's what it takes.
2.21.2008 7:20am
cboldt (mail):
-- AT&T did not need to determine if the request was legal -- only proper, in that they had the proper requests from Executive. As long as they recieved the proper requests from the DoJ, they were immune from liability. --

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What are the distinguishing characteristics between "legal request" and "proper request?"

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18 USC 2511(2)(a)(ii)(B) recites:

a certification in writing by a person specified in section 2518 (7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met ...


If the statutory requirements have NOT been met, but the certification recites "all statutory requirements have been met," I see a difference that might be distinguished with the phrase "not lawful surveillance, but the request is in the proper form."

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If the statutory requirements have NOT been met, but the certification recites "this is a lawful request" (i.e., it doesn't assert that all statutory requirements have been met. The signer knows the surveillance is not within statutory bounds, but presumes -- without confirmation from Congress or the courts -- to find "lawful" ground OUTSIDE of the statutes), is that certification a "request in the proper form?"

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If the statute provides that the "person specified" as signing the certificate must be the AG (50 USC 1802), but the certificate is signed by WH counsel, is that certification a "request in the proper form?"
2.21.2008 7:44am
cboldt (mail):
I think the bottom line is roughly that surveillance isn't a 4th amendment violation, unless the government is precluded from using the evidence. Keep the issue out of court, and the power of surveillance is safe from judicial attack.

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First, "don't get caught," then remember that it's easier to get forgiveness than permission.

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Are there any cases of civil damages being recovered for a "wrongful surveillance?"
2.21.2008 8:00am
cboldt (mail):
-- until al Qaeda read U.S. newspapers giving away that the NSA was intercepting their satellite calls, they were using them heavily. --

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That was Senator Hatch, who gave away from the floor of the Senate that the US could triangulate geographic position (physical location of the caller) from satellite phone communications.

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I'm pretty sure that any "secrecy minded" person understands that radio transmissions can be intercepted.

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The primary thing that prevents a communication from being obtained by the government is VOLUNTARY RESTRAINT, not a lack of physical ability. Tap the line, open the letter, bug the room, read the hard drive at the ISP, etc. ... technology makes surveillance EASY.

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The ability to triangulate position of RF "from the ground" (including air-based reception, e.g., airplane or drone) is well understood too. But the ability to triangulate from space, well, that came as a surprise.
2.21.2008 8:10am
ejo:
has anyone yet presented facts to back up the apparent moral certainty that our inability to conduct surveillance does not affect our security? it seems to me, if you throw out such impressions, that you should be able to back it up. or, is it faith based?
2.21.2008 12:00pm
Thomas_Holsinger:
Professor Kerr,

My father was the administrative assistant to a Democratic congressman on the House Intelligence Committee when FISA was passed. I was in private practice at the time and discussed the bill with my father and Congressman Ryan.

The Democrats involved were totally focused on regulation of surveillance of domestic-to-domestic communications. They had no intention whatever of impeding surveillance of communications with one or both ends in a foreign country.

Had Republicans in Congress in 1978 opposed FISA on the grounds that it would require judicial approval of surveillance of foreign-to-foreign communications, particularly surveillance of enemy communications in wartime, and that American telecommunications companies would be sued for assisting the government in doing so,

Congressional Democrats would have said the Republicans were **cking nuts.

I was a Democrat in 1978. I'm a Republican now.

Ronald Reagan said, "I used to be a Democrat. I didn't leave the Democrats - they left me."
2.21.2008 2:29pm
ejo:
but, apparently, as a matter of faith, our intelligence gathering abilities have not been impeded based on a professor saying so.
2.21.2008 3:03pm
Oren:
ejo, do you have any evidence that doing so is harming our security? The burden of proof is with those that have an actual claim about the effectiveness of a particular action, not those claiming a negative.
2.21.2008 3:31pm
Elliot123 (mail):
All this sounds like some folks think anyone who works on my house is obligated to investigate to see if I have legal authority to contract for the work. If I call a plumber to have the sink fixed, is he obligated to do a title search to make sure I am acting within the law in requesting his services?
2.21.2008 3:59pm
Kelvin McCabe:
Prof Kerr: "The difficulty is, as I explain in the link above, that the legality of the TSP and the TelCo's liability are two separate questions."

Fair enough. But what if is isn't only the TSP that is at issue. What if it is as the electronic frontier foundation and their whistleblower (employee of AT&T) say it is in their complaint - a massive dragnet operation to suck up every single communication passing through a designated switch. Most of which, since the switch is located in the u.s., is domestic to domestic communications/email/etc...

If the governemnt asked the telecos to do that - and the telecos complied - the legality of one subset of that practice - the TSP - doesn't mean that much (to me at least) because it isn't only foreign to u.s. calls (where one side is al-quaida) being monitored. Its every single phone call, email, text message, push to talk transmission, etc... passing through a given location. All sans warrant. In that particular EFF complaint, the AT&T location near San Francisco. With others planned in the midwest and east coast for the same thing.

Regardless of the legality of the 'TSP' - if every single domestic email passing through a server was gobbled up by AT&T -all without warrants -and handed over to the government then the telco's potential liability under other domestic federal statues (Not FISA) would be clear, no?

In other words, doesn't your response require that the telco's are being sued for the 'TSP' activity only? If they are being sued for something else, such as massive datamining operations of all u.s. customers' email, then why does the legality of the 'TSP' matter to a resolution of that issue? From what i can gather, the TSP is a part of the EFF lawsuit because they use the administration's public statements/admissions regarding not having warrants - but there is much much more than what has been publicly admitted by the administration that is included (thanks to the whistleblower.)

Thus, granting immunity to the telco's at this stage, based on the legality of or cooperation regarding the TSP only, effectively immunizes them from any and all other possible violations of federal law that occurred simultaneously. This is my hunch as to why immunity is ABSOLUTELY NECESSARY!! And i realize the allegations in EFF's complaint are just that - allegations - but I have more reason to believe that than anything the administration says. Not because i love alquaida but because this administration has zero credibility.
2.22.2008 1:51pm