Gene Healy and I have an op-ed in the OC Register today giving some historical background on the FISA debate:
The Senate voted Feb. 12 to authorize warrantless domestic surveillance of Americans’ international phone calls and e-mails. Unlike the legislation the House passed in November, the Senate version allows the government to spy on its own citizens’ international communications without meaningful judicial oversight.
In 1976, a special Senate committee revealed massive abuses of power by the FBI, the National Security Agency and other government agencies. One notorious case was the FBI’s attempts to undermine and discredit Dr. Martin Luther King Jr. The bureau tapped King’s phones and bugged his hotel rooms. The FBI used the information in attempts to discredit King with churches, universities and the press.
For three decades, the NSA obtained copies of virtually all telegrams to and from the United States without court oversight. The NSA also tapped international phone calls. From 1967-73, the NSA kept a “watchlist” of surveillance targets that included many Americans.
Congress passed FISA to make sure this sort of thing never happened again. If Congress eviscerates it, there’s a real danger that it will happen again.
Also today, my Slate piece is quoted on Speaker Pelosi’s blog.
Today is a birthday of sorts. One year ago today, February 19, 2007, Sirius and XM announced plans to merge. And after 12 months of debate, investigation, deliberation and prognostication, the deal is still awaiting approval by the FCC and the Department of Justice.
This, despite the FCC’s much-heralded “shot-clock” — under which it has pledged to review mergers in 180-days. That shot-clock frankly looked a little shaky from the start, as the FCC didn’t even start the dang thing until 78 days had passed. Even with that, the FCC remained silent when the deadline passed.
Of course, we’ve come to expect such delay from the FCC, whose official seal contains a figure of a snail. (Well, not really, but it would fit). But the long-delay from the Department of Justice is more eye-catching. What can the Antitrust Division possibly not know about the deal by now?
Of course, rumors of imminent action at DOJ have frequently made the rounds: the DOJ is going to approve the deal, the DOJ is going to reject the deal, the DOJ is going to attach conditions on the deal. I’m half-expecting to read that the DOJ’s dog ate the files on the deal.
Enough delay. I’ve said before that the deal should be approved. Others disagree. But everyone should be able to agree that a year is long enough for the government to make a decision.
It’s on the tip of nearly everyone’s tounge: America needs a National Broadband Strategy. With Capital Letters. Now. Or at least by January 20, 2009.
Seriously, it is amazing how much consensus there seems to have developed on this simple point. From the Bell carriers to Googlers, from public interest groups to local legislators, from Democratic activists critical of anything and everything done by the Bush administration to rural Republicans who finally want the Universal Service Fund to cover high-speed Internet services: they all want a National Broadband Strategy.
The only remaining question is: What sort of Broadband Strategy? The debate will begin at the 2008 Politics Online Conference.
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The phrase you’re looking for is “the libertarian Cato Institute.”
Update: Incidentally, why are major media outlets like MSNBC so bad at getting embedding to work properly? I cut and pasted what MSNBC called the embed code for the above video into this post, and it didn’t cause my browser to display the video. Now, maybe I did something wrong, but web startups with much smaller budgets than MSNBC’s seem to have managed to implement embedding that I can use without difficulty. So why can’t big sites manage it?
Normally my medium is the written word, but today you get to see and hear me, instead. On Cato’s Daily Podcast, I explain why the terrorists haven’t blown us all up yet after the expiration of the Protect America Act on Saturday. And over here, I make my Bloggingheads.tv debut, appearing on Will Wilkinson’s diavlog show, Free Will. I talk about all of my favorite tech policy subjects: FISA, online privacy, advertising business models, and software patents. Check it out!
On the one hand, I appreciate the link from Crooks and Liars to my recent C@L blogging on the FISA issue. But on the other hand, the implications of the “even the CATO Institute” comment stings a little. The implication, I guess, is that it’s surprising that Cato scholars would be in favor of civil liberties. Which is a little strange. Here is my colleagues Gene Healy and Tim Lynch attacking the president’s civil liberties record in 2006. Here is Cato’s 1999 books attacking Pres. Clinton for his poor civil liberties record. Here is Cato’s 2006 amicus brief opposing the president’s stance in the Hamdan case. Here is Cato’s brief in the Padilla case. Here are the dozens of pro-civil-liberties op-eds Cato scholars have written since 1991. Here are the op-eds of my former colleague Radley Balko, who wrote extensively about police misconduct and the futility of the drug war and gambling bans.
And yes, we occasionally have Cato scholars take what I would regard as the anti-civil-liberties position. Cato’s doesn’t tell its scholars what to think, and as a result they sometimes reach what most of us regard as the wrong conclusion. But the overwhelming majority of Cato’s work in this area has been on the side of civil liberties and the rule of law. And so the idea that we should be surprise that “even the CATO Institute” (and please note that “Cato” is not an acronym”) is opposed to the president’s agenda on this issue is a little silly.
Unfortunately, partisanship seems to have so poisoned our political culture that people have trouble wrapping their brains around the idea that not everyone falls neatly onto the left-right spectrum. Because Cato scholars take “right-wing” positions on taxes, spending, and regulations, it becomes disconcerting when we take “left-wing” positions on civil liberties, war, immigration, or other social issues. I suppose this is helpful to the extent that it makes right-wingers more likely to take our views on civil liberties seriously (and hopefully left-wingers will take a second look at what we have to say about economic policy). But it’s also frustrating.
Update: The Carpetbagger Report seems to be equally confused:
Keep in mind, the Washington Times and the Cato Institute are not exactly partisans out to make the White House look bad — they’re usually partisans out to make the White House look good.
I’d be curious to have them go over here and show me some examples of Cato scholars being “partisans out to make the White House look good.” Nothing? How about here? No? Maybe here? Here? Here? Here? It would obviously be silly to say that Cato scholars never agree with the president. Cato scholars and the White House were on the same page on immigration and Social Security reform, for example. But the charge of partisanship is absurd.
I don’t want to deluge TLF readers with repetitious nitpicking of Republican talking points, but this, from later in the same Boehner article, is really amazing:
The Foreign Intelligence Surveillance Act was written and passed during the Cold War era, and in August Congress updated it to reflect the sophisticated and adaptive nature of the terrorist threat. We worked in a bipartisan manner to close a gaping loophole, one that had prohibited our intelligence officials to monitor all foreign communications of terrorists overseas.
Let me repeat that for emphasis: the highest-ranking Republican in the House of Representatives is claiming that prior to August of 2007, the law prohibited the interception of “all foreign communications” of terrorists. (Let’s assume he meant without getting a FISA warrant) I’ve read that several times, and I can’t think of any way to interpret this that’s not completely false. If a communication is entirely outside of the United States and no Americans are parties to the call, FISA does not and never has placed any restrictions on intercepting it. FISA has also never governed the interception of wireless communications.
Once again, this is either a lie or a demonstration of extraordinary cluelessness. Either way, it ought to be embarrassing to the Congressman to have written it, and to Town Hall to have printed it.
House Minority Leader John Boehner is just full of interesting statements on the FISA debate:
Because of the Democrats’ inaction, the Protect America Act expired last night at midnight, forcing our intelligence officials to revert to the same terror surveillance laws that failed to protect America from the al-Qaeda terrorist attack on 9/11. Al Qaeda and other terrorist groups are still plotting against the United States and our allies, but now our intelligence officials don’t have all the tools they need to protect us. These laws didn’t safeguard America in 2001, so why would House Democrat leaders place our nation at risk by putting them back into effect now?
There’s no polite way to put it: this is a lie. The expiration of the Protect America Act has not left us with “the same terror surveillance laws that failed to protect America from the al-Qaeda terrorist attack on 9/11.” Congress overhauled FISA in October 2001 to deal with deficiencies in our intelligence laws that had been uncovered by the September 11 attacks. As Glen Greenwald points out, the president gave a radio address in October 2001 describing the updated FISA law as follows:
The bill I signed yesterday gives intelligence and law enforcement officials additional tools they need to hunt and capture and punish terrorists. Our enemies operate by highly sophisticated methods and technologies, using the latest means of communication and the new weapon of bioterrorism.
When earlier laws were written, some of these methods did not even exist. The new law recognizes the realities and dangers posed by the modern terrorist. It will help us to prosecute terrorist organizations — and also to detect them before they strike.
Congress made additional revisions to FISA in 2002, 2004, and 2006. All of those changes remain in effect.
There may be legitimate arguments for the White House position. But I think it’s telling how many of the president’s most prominent allies lapse into making arguments that don’t withstand the most elementary fact-checking. Either their ghost-writers are extraordinarily incompetent, or they’re short on arguments that don’t involve twisting the truth.
The long-awaited network neutrality bill of Rep. Ed Markey (D-MA) was unveiled this week. H.R. 5353 establishes a new broadband policy and requires the Federal Communications Commission to conduct an Internet Freedom Assessment, with public summits and a report to Congress.
This is one of the issues we discuss in our most recent podcast, TPW 36: The Markey bill, the politics of MS-Yahoo, and taxes on video games.
Broadband Policy
According to the bill, it would be the policy of the U.S. to:
- maintain the freedom to use for lawful purposes broadband telecommunications networks, including the Internet …
- ensure that the Internet remains a vital force in the United States economy …
- preserve and promote the open and interconnected nature of broadband networks …
- safeguard the open marketplace of ideas on the Internet by adopting and enforcing baseline protections to guard against unreasonable discriminatory favoritism for, or degradation of, content by network operators …
These policies would become part of the Communications Act, but as all lawyers know, Congressional declarations aren’t enforceable (although sometimes they may be useful in resolving ambiguous or doubtful provisions of law).
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The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.