Timothy B. Lee (Contributor, 2004-2009) is an adjunct scholar at the Cato Institute. He is currently a PhD student and a member of the Center for Information Technology Policy at Princeton University. He contributes regularly to a variety of online publications, including Ars Technica, Techdirt, Cato @ Liberty, and The Angry Blog. He has been a Mac bigot since 1984, a Unix, vi, and Perl bigot since 1998, and a sworn enemy of HTML-formatted email for as long as certaincompanies have thought that was a good idea. You can reach him by email at leex1008@umn.edu.
The most frustrating thing about the Klein fiasco is that I can think of a number of people who actually know a lot about the FISA issue and could have provided Time‘s readership with useful information about the state of the debate. At a minimum, they should be able to find someone who can at least take the trouble to read the text of the legislation he’s writing about.
The RESTORE Act is about 20 double-space pages long. You can read it in under an hour. I did it when I was writing up the story for Ars. Ars has a lot fewer readers than Time, and I guarantee you that Klein got paid more for his column than I got paid for my article.
There’s been a lot of commentary of late blaming the Internet for undermining the high journalistic standards of the mainstream media. Well, it doesn’t get more mainstream than Time. So why didn’t the magazine’s vaunted editors notice that Klein’s “summary” was riddled with errors? If Klein couldn’t be bothered to read the bill, shouldn’t Time have assigned a fact-checker to do so? And how do we explain the fact that Internet-centric journalists like Greenwald and Singel (not to mention up-and-coming journalists like Julian) can run circles around Klein on the FISA issue?
Last week, Joe Klein penned a column purporting to show that the Democrats still didn’t “get” national security issues. It included this charming paragraph:
There is broad, bipartisan agreement on how to legalize the surveillance of phone calls and emails of foreign intelligence targets. The basic principle is this: if a suspicious pattern of calls from a terrorist suspect to a U.S. citizen is found, a FISA court warrant is necessary to monitor those communications. But to safeguard against civil-liberty abuses, all records of clearly nontargeted Americans who receive emails or phone calls from foreign suspects would be, in effect, erased. Unfortunately, Speaker Nancy Pelosi quashed the House Intelligence Committee’s bipartisan effort and supported a Democratic bill that — Limbaugh is salivating — would require the surveillance of every foreign-terrorist target’s calls to be approved by the FISA court, an institution founded to protect the rights of U.S. citizens only. In the lethal shorthand of political advertising, it would give terrorists the same legal protections as Americans. That is well beyond stupid.
Now, as Glenn Greenwald and Ryan Singel ably explain, virtually every word of this is false. In fact, it’s so confused that it’s hard to figure out what he’s even talking about. I have no idea what the “House Intelligence Committee’s bipartisan effort” is supposed to refer to (Greenwald and Singel are equally confused), but it certainly doesn’t require warrants for overseas surveillance, which has always been outside the purview of domestic laws. And the RESTORE Act specifically exempts domestic wiretapping of foreign-to-foreign calls from the reach of the FISA courts.
Glenn Greenwald reports that the House will be bringing the RESTORE Act up for a vote today. I wasn’t thrilled with this legislation last time it was brought up for a vote, but there have apparently been enough improvements made to convince Rep. Holt to vote for it, which is a good sign. It’s certainly much better than the horrible legislation in the Senate version, and crucially it includes no immunity for telecom providers.
Here are some good comments by Rep. Lloyd Doggett of Texas:
Now might be a good time to call your Congresscritter and let him or her know how you feel about warrantless surveillance and telecom immunity.
Update: Just to be clear, the suggestion that you call your member of Congress is a personal recommendation, and shouldn’t be construed as the position of any organizations with which I might be affiliated.
Verizon DOES block your ability to use 3rd-party mail servers. GMail is web-based, son. A server at a friend’s ISP, connecting over port 25, is BLOCKED by Verizon, period end of story.
Now, I use another port and so go my merry way, but Verizon, having blocked port 25, can block any ports they wish under the same guiding principle. Verizon sets limits.
And another reader responds:
Isn’t that standard practice? To (somewhat) prevent spoofing email, ISPs require outbound mail to go through in-house servers, but inbound on port 110 can be any source you have access to.
Does anyone know if this is true? I’ve occasionally encountered Wifi connections in hotels or coffee shops that block outbound SMTP, but I’d always assumed that real residential ISPs don’t do that sort of thing. Such a policy does little or nothing to combat spam, but it sure is a pain in the butt for those of us who use real mail clients and don’t use our ISP’s SMTP servers.
Relatedly, would such a policy a violation of network neutrality? It sure seems like it violates the letter of Snowe-Dorgan, which would imply that thousands of annoyingly-configured hotspots would instantly become illegal if network neutrality regs passed.
Via Slashdot, I think this is intended to illustrate an appalling lack of civic-mindedness among voters. But I’m more incredulous at the number of people who wouldn’t take the money:
Only 20 percent said they’d exchange their vote for an iPod touch.
But 66 percent said they’d forfeit their vote for a free ride to NYU. And half said they’d give up the right to vote forever for $1 million.
But they also overwhelmingly lauded the importance of voting.
A million dollars in exchange for never voting again? You’d be an idiot not to take that deal, and I bet that a lot of people who said they wouldn’t take it are lying to the pollsters because they know that’s the answer they’re supposed to give. If there were actually a million dollars on the table, I would be shocked if less than 80 percent of people took it. I mean, look: if you’re feeling guilty about not doing your civic duty, take the money and use half of it to write hundreds of $2300 checks to the politicians you would have voted for. Large campaign contributions have a much bigger impact on the outcome of the election than a single vote does, and you’d have much more freedom to target your contributions in ways that will affect the outcomes of political debates.
Suppose the government asked a private security firm to commit murder or torture or rape. Would they, too, be entitled to immunity because they acted on the basis of “explicit assurances from the highest levels of the government that the activities in question were authorized by the president and determined to be lawful”? Is there a difference in principle between these situations? Perhaps in Mr. Ashcroft’s view unlawful surveillance is different because it’s just not a sufficiently serious violation of individual freedom to expect private individuals and organizations to question the legality of the government’s request. Perhaps Mr. Ashcroft would demand legislative immunity even in cases of murder, torture, and rape. I would like to know.
Second, what makes Mr. Ashcroft think that the government or the telecommunications companies could reasonably have believed in this situation that the government’s surveillance program was lawful? As a matter of fact, the clear consensus among legal and constitutional experts is that Mr. Bush’s surveillance program violated the 1978 Foreign Intelligence Surveillance Act, which expressly prohibited such conduct. Only a tiny slice of the legal profession believes that the Bush surveillance program was lawful, and almost all of them had been recruited into the Bush White House.
It was hard to pick one excerpt because it was all really good, so go read the whole thing.
I’m sure plenty of TLFers already read Techdirt, but in case you needed yet another reason to add it to your feed reader, two of the smartest bloggers I know—Julian and Tom—have begun contributing to the site.
Meanwhile, my contributions to TLF have been a little slower than usual as a lot of my blogging energies have been diverted over there. One of the interesting things about contributing to Techdirt has been the opportunity to branch out a little bit into the kind of pure tech/business analysis that wouldn’t really be on-topic for TLF. My latest post is a spin-off of our recent discussion of Bill Rosenblatt’s article about Radiohead and the “race to the bottom”:
The strangest thing about Rosenblatt’s article is the pejorative use of the term “race to the bottom” to describe competition in the music industry. When Apple cuts the price on the iPod, we would be really surprised to see a columnist complaining about how Apple had started a “race to the bottom” that will undermine profits among consumer electronics companies. We understand that, as painful as competition can be for producers, consumers and the economy as a whole benefit from such aggressive price-cutting. Talking about a “race to the bottom” is the language of cartels, which try to hold prices above the competitive level. Music is like any other product As the marginal costs of production and distribution fall, it’s natural that the price of music will fall as well. Smart musicians and companies will find ways to adapt and prosper in the new, more competitive marketplace. As we’ve said before, saying you can’t compete with free is saying you can’t compete at all. The sooner musicians and record labels realize that, the more prepared they’ll be when the price of music drops out from under them.
The more I think about it, the less sense Wikipedia’s notability rule makes. That’s the rule that says that the subject of an article must “worthy of notice” to merit the creation of an article about them. For example, today I was goofing off on Wikipedia and looking at Wikipedia’s encyclopedic coverage of the Taft family. I was curious about Pres. Taft’s living relatives, so I drilled down to William Howard Taft IV, and I noticed that he has a son, William Howard Taft V, who appeared not to have a Wikipedia entry.
So I googled WHT V and quickly came to this 2005 wedding announcement in the New York Times. I thought I’d do my good deed for the day and create a new Wikipedia article based in the information in the Times story.
One of my favorite things about TLF is our ability to have vigorous but respectful disagreements. I appreciated Hance’s post making the case for telecom immunity, but I have to say I didn’t find it very persuasive.
I don’t understand the argument that telecom providers were facing “extraordinary circumstances” that led them to break the law. I might have some sympathy for that argument if we were talking about a program that occurred on 9/11 or in the chaotic days that followed. If the telecom providers has simply made rash decisions in their haste to prevent another attack and inadvertently broke the law, I might be sympathetic. There might be a plausible argument for providing immunity for information shared between, say, September 11 an December 31, 2001. But that’s not what we’re talking about here. If the Klein declaration is accurate—and AT&T hasn’t disputed it—the program at issue in that lawsuit started in 2003, and as far as we know it continues to this day. The Bush administration could have gone to Congress any time in 2002 and requested changes to the relevant statutes. And AT&T and Verizon could have—and indeed under the law were obligated to—do what Qwest did and tell the administration to come back when they had a warrant. They didn’t do that, and in my view they ought to be held responsible for breaking the law.
I don’t find the Posner and Kristol/Schmidtt hypotheticals very persuasive, but even if you do, they’re really beside the point. If current standards for obtaining warrants in terrorism cases are too stringent, the Bush administration should have gotten Congress to change the rules. We could have had this debate six years ago, Congress could have made a decision, and then AT&T and Verizon could have participated in whichever activities Congress approved with a clean conscience. Instead, the telcos helped the Bush administration ignore Congress, evade court scrutiny, and violate the clear requirements of the law.
So even if prospective rule changes are necessary, that doesn’t in any way justify retrospective white-washing of past lawbreaking. Granting telecom immunity will set the precedent that companies can break the law on the say-so of the executive branch, without needing to worry about what Congress or the courts might have to say about it. Which would mean the end of meaningful Congressional or judicial oversight over surveillance activities. Because telecom companies will know perfectly well that if they break the law at the request of the executive branch, the executive branch will go to the mat to make sure the law isn’t actually enforced and companies aren’t actually found liable. Once that precedent is set, it won’t matter what other rules Congress might enact, because telecom companies will have absolutely no incentive to follow them, and plenty of incentive (read: government contracts) to do the president’s bidding.
One final point: we don’t have to speculate what the world would look like if the executive branch had the power to eavesdrop on whomever it liked without meaningful judicial oversight. Martin Luther King was the most famous of the dozens of anti-war activists, civil rights leaders, journalists, and other undesirables whose communications were bugged by the Johnson and Nixon administration. There’s no evidence that the Bush administration has done anything like that. But if we eliminate meaningful judicial oversight of the executive branch’s surveillance activities, there’s every reason to think that a future administration will.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology. Learn more about TLF →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.