Interesting Stuff

I need to stop editing this and post it before it becomes out of date again.

Finally, after seven years, it appears that some of the democrats may have grown a spine. Congress has been fighting over surveillance bills concerning wiretapping and the Foreign Intelligence Surveillance court. Although everyone in Congress unfortunately seems to think that warrantless wiretaps are a good idea, the main battle is currently over whether the telephone companies should be granted retroactive immunity for allowing such warrantless wiretaps back when it was illegal according to Federal law. You may recall that the Protect America Act of 2007 allowed the government to wiretap phones without court oversight, but it was set to expire in February 2008. Congress recently spent a lot of effort trying to renew it, but the retroactive immunity has become a sticking point. Bush and his cronies say that without it, the telecoms will be afraid to help the government with this stuff in the future (never mind the fact that if they just got the FISA court to review it, it’s very easy to get a warrant and then the telecoms are happy to comply). Consequently, the Senate passed a version of the bill that granted retroactive immunity to the telecoms (note that Obama voted against the immunity, while McCain voted for it and Clinton didn’t bother to show up; all three have claimed they were against such things when asked about it in the past). The House of Representatives, however, passed a copy of the bill that did not grant immunity. The two bills went to reconciliation (where they’re merged into one law that goes back to both groups again), and the version decided upon included the immunity. However, again the House did not pass the bill. In response, Republicans staged a walk-out in protest. Consequently, no bill was sent to Bush to be signed, and the PAA expired! We’re back to the (mostly sane) wiretapping rules described under the Foreign Intelligence Surveillance Act of 1978. I earnestly, desperately hope that the Democrats continue to hold strong, and I have written to my Representative to say this (he wrote back with a canned response about how he intends to fight this, but that doesn’t actually mean he’ll carry through). We’ll see.

In the meantime, bastions of freedom and privacy such as the Electronic Frontier Foundation continue to fight against the telephone companies that violated Federal law and our privacy. Sadly, the Supreme Court threw out the ACLU’s case with absolutely no comment about why they did that (a lower court had ruled that they can’t prove they were the victem of the warrantless wiretaps, because the evidence that shows they were was deemed to be a state secret and consequently thrown out of the case). However, I believe the EFF cases are still going through the legal process. This is a tough thing for the Supreme Court to tackle: if they rule in favor of the wiretaps, they significantly weaken the fourth amendment (see Berger v. New York, 1967). However, if the court makes warrantless wiretapping illegal, all hell breaks loose because the Bush administration has been conducting an unconstitutional program for years (and all hell breaking loose is not conducive to orderly government).

We’ll see what happens. If the past few years are any prediction, the Democrats are just going to roll over and grant the retroactive immunity, but I really, really hope this won’t transpire.

For those of you who are not familiar with it, the Electronic Frontier Foundation is a small group of lawyers and techies who are sort of like the ACLU, but only for technology-type stuff. Because the EFF is so small, they don’t have the resources to take on every case that comes along the way the ACLU does. Consquently, they wait for the perfect case, and then kick ass. The EFF was behind the class action lawsuit over Sony BMG’s rootkits (I don’t think I ever posted the resolution of that, but the EFF won and if you bought one of these CDs, you can get some money and a way to remove them from your machine and stuff). The EFF was behind the landmark case about the broadcast flag that finally gave you the right to record what you want on your TiVo or VCR (again). They were the ones who got the electronic voting company Diebold kicked out of North Carolina for their unethical business practices and intentional security problems. The EFF are all-around awesome people!

Anyways, they’re now battling AT&T over the warrantless wiretapping thing (the ACLU is also suing AT&T, but the two cases are, at least for now, separate). At DEFCON, I got to see a panel of 5 EFF people discuss this case with the audience. AT&T has been completely assy about every point, arguing ludicrous things, such as the claim that the address of their main datacenter is a trade secret (despite the fact that it’s registered with the city of San Francisco and is in the phone book). Time after time, the judge has come down on the EFF’s side. The EFF has even managed to work around the State Secrets issues that right-wing pundits expected would bring the entire trial to a standstill (the EFF’s arguments here were amazingly clever. Post a comment if you’re interested in hearing more). Earlier this week, the judge in the ACLU’s suit ruled that AT&T must stop their practices, though they plan to appeal this to the 9th circuit court of appeals (though knowing the 9th circuit, the decision should stand). The EFF’s judge has already made a similar ruling, and by now should have decided whether AT&T can continue the wiretapping while they appeal (though I don’t know the outcome of that edit: they can continue re-edit: that was for the ACLU case. I still don’t know what happened to the motion to stay in the EFF case). As usual, Fox “News” is using intimidation and straw-man arguments to say that the ruling is the work of a foolish, activist, outsider judge. The Washington Post is taking a more reasonable, moderate stance.

In the meantime, there’s a scary bill looming on the horizon. This bill, if passed into law, would specifically legalize warrantless wiretapping, thereby stripping away all congressional oversight. Personally, I feel this is ridiculous, because FISA (the secret court that is supposed to oversee wiretaps) has never once in its entire 30-year history turned down a wiretap application. Moreover, the Arlen-Cheney bill would move the ACLU’s and EFF’s legal battles from the normal courts over to FISA, where no one would ever be able to find out what occurred or why. If you want to keep your Fourth Amendment rights and not have a chilling effect set over all of America, please, please call or write to your Congresspeople (note that that link is secure and any data you put in that form will be encrypted; yet another good thing the EFF does).

A couple minor points about the EFF: EFF’s stance on net neutrality →