There’s been a lot of news for the past 3-6 months about the new FISA bill and how it provides immunity for the telecommunications companies. A lot of people including the Electronic Frontier Foundation are opposed to this provision of the bill (if not bill in its entirety) because they say the telcos have acted illegally by assisting the Executive Branch with their warrentless wiretapping of phone calls. The reason they argue this is illegal is that the original FISA bill, as written in the 1970s (and ammended throughout the years) requires a warrant for all wiretapping of US Persons. That includes foreigners who are physically in the United States. As the New York Times revealed in 2005, the Bush Administration started acting against this law in 2001 because of opinions written by some radicals in the Justice Department (such as Yoo).
Now, normally I’m against most of what this administration has done. They’ve been unnecessarily sneaky with a lot of things that have caused an erosion of the trust of our citizens in the Government. For example, they’ve been sliding the reason for attacking Iraq around until they find one that’s palatable and sticks. If they just would have been honest from the beginning – that they just wanted Saddam out of the way – perhaps they could have just drummed up enough support for that. And, if they couldn’t, well we’re a democracy (or like to pretend we are) so they shouldn’t be able to do it.
However, I think the telcos need immunity and here’s why. Let’s say I’m the CEO of a telecommunications company that rhymes with Horizon and some guys from the US Justice Department show up in my office. They say, “We need you to wiretap phone calls in the USA to stop terrorists. We could have stopped 11 Sept if we only had been able to do this.”
I say, “One Moment Please.” And I check with my lawyers. Then I respond with, “They say you need a FISA warrant and for us to cooperate with you would be illegal.”
Then the Justice Department guys say, “Look, this is legal. We have this letter here that says it’s legal. Anyway, we’re the government and we promise not to arrest you over this. If something happens, we’ve got your back. After all, it’s legal – see”
Now what can I say? If the US Government itself has told me that this program is legal, who am I to argue? After all, who is in charge of police and arresting people? The US Government. So they tell me this is legal, then it’s legal. So it’s unfair if I cooperate with them, thinking they’ve cleared it with whomever (like Congress), for my company to get sued. How was I to know they didn’t do things correctly? It was underground spy stuff, I can’t exactly call around and check to make sure that it really is illegal.
So I think the telcos are just victims in the Government’s deception. They shouldn’t be punished for that. Otherwise, what’s going to happen the next time those Justice Department guys show up asking for [legitimate] favors? I’ll just want to CMA and I’ll say, “No thanks. Why don’t you go ask that telephone company with the Death Star Logo.”