It’s amazing the pernicious nonsense you can find over at NRO:
My understanding, from talking to experts like Andy McCarthy is that if FISA is not reformed, our entire ability to monitor foreign communications — which makes up about 95 percent of what NSA does and probably 50 or more percent of what CIA and DIA do — will be compromised. Which is why my senior administration official said today: “There’s no reason in the world [Congress] shouldn’t stay here and get it done” … “now.”
This is so amazingly off-base that it’s hard to know where to begin. Well, let me just give you a list:
- FISA has never governed, and does not currently impact, eavesdropping activities that occur overseas.
- FISA has never governed the interception of wireless communications, even if it occurs in the United States.
- “Authorizations” under the PAA don’t expire with the sunsetting of the PAA. Any programs “authorized” by the administration over the last six months will continue to be legal until at least August
- After the PAA expires, the NSA will still be able to seek warrants from the FISA court for eavesdropping activities that aren’t covered by existing “authorizations.”
- The only reason FISA hasn’t been “reformed” is because the president has threatened to veto reform legislation passed by the House in November in order to hold out for retroactive telco amnesty.
- The president, who is supposedly so concerned about losing the ability to eavesdrop on terrorists, actually threatened to veto legislation extending the PAA in order to increase the pressure for amnesty.
I’m not sure what business Kathryn Jean Lopez thinks she’s in, but dispensing warmed-over White House talking points certainly ain’t journalism.
The Department of Homeland Security will increase document checks at the border starting Friday. The costs of doing this outweigh the miniscule security benefits, as I discuss in today’s Detroit News.
A great piece by Dahlia Lithwick on the allegedly ticking terrorist time bomb:
It’s true enough that FISA requires a sober update to account for technological changes since it was drafted in 1978, but the PAA wasn’t sober and it wasn’t justified. Now we must also contend with the added insult of the president’s demand for telecom immunity for the companies that allegedly helped him illegally spy on Americans. Hmmm. Don’t punish phone companies for believing our lies almost sounds plausible, so long as the Bush administration remains on the hook for peddling those lies. But that’s not what the White House wants—it wants telecom immunity, plus more government secrecy, plus no oversight. Sens. Feinstein and Feingold, and others, are pushing for amendments that would keep us safe while preventing the Bush administration from slinking away from its surveillance activities.
Congressional Democrats are in peril of being hoodwinked again in two weeks as they were last August; not by rational argument or even by the parliamentary electric slide, but by their congenital inability to act any time the White House invokes the terrorist alarm clock. If ever there was a game of chicken Democrats can win, this is it: Let’s put the fictions of the convenient-sounding emergency-producing timers to rest. Be it the terrorist alarm clock that justifies illegal surveillance or the “ticking time bombs” that justify illegal torture, the only clock that matters now is the one counting down to a return to the rule of law.
Quite so. For seven years the Democrats have pursued a strategy that amounts to “let’s give the president everything he wants on national security and then he’ll stop picking on us.” Strangely enough, it hasn’t worked. Every Democratic retreat has emboldened the White House to push for more. Every time the Democrats try to meet the president halfway he moves the goal posts.
The president has now staked out a position that, in a sane world, be a PR disaster: “give the telcos retroactive immunity or I’ll veto vital anti-terrorism legislation.” If the Democrats won’t call that bluff, is there
anything the president could demand that would cause them to say no?
You might have seen Roger Pilon’s recent op-ed defending the Bush administration’s stance in the FISA debate. As you might imagine, I have a somewhat different take on the issue, as I discuss at the Cato blog:
The dispute is over what safeguards are appropriate to ensure that the intelligence community’s surveillance activities here in the United States are limited to genuine foreign intelligence. Roger’s position appears to be that neither the courts nor Congress may place any restrictions on domestic surveillance activities that the president declares to be related to foreign intelligence gathering. But that’s not good enough. Without judicial oversight, there is no way to know if the executive branch is properly limiting its activities to spies and terrorists, or if they’ve begun to invade the privacy of petty criminals or even law-abiding individuals. This is no hypothetical scenario. The FBI conducted extensive surveillance of Martin Luther King Jr. and other civil rights and anti-war leaders in the 1960s and 1970s, which was one of the reasons Congress enacted new safeguards in the first place…
In short, FISA gave the intelligence community plenty of flexibility to perform the domestic wiretaps they needed to keep Americans safe. But crucially, the government had to tell the court who it was spying on, so that the court could verify that the law was being followed. That’s an important safeguard that ensures that the president doesn’t exceed his constitutional authority and encroach on the privacy of law-abiding citizens. The Protect America Act severely crippled that protection, and it would be a serious mistake for Congress to make the damage permanent.
Julian has a much more thorough and harsher critique of Roger’s piece, amusingly titled “Rogering the Constitution.” One of the interesting statistics that Julian pointed out to me is that the FISA court had never rejected an application until 2003, and through the end of 2006 had rejected a grand total of 5 applications out of more than 20,000 it has reviewed. The idea that this is some kind of intolerable “micromanagement” of government surveillance strikes me as kind of implausible.
Here’s the FISA portion of the SOTU:
One of the most important tools we can give them is the ability to monitor terrorist communications. To protect America, we need to know who the terrorists are talking to, what they are saying, and what they are planning. Last year, the Congress passed legislation to help us do that. Unfortunately, the Congress set the legislation to expire on February 1. This means that if you do not act by Friday, our ability to track terrorist threats would be weakened and our citizens will be in greater danger. The Congress must ensure the flow of vital intelligence is not disrupted. The Congress must pass liability protection for companies believed to have assisted in the efforts to defend America. We have had ample time for debate. The time to act is now.
I love the Clintonian phrasing: “liability protection for companies believed to have assisted in the efforts to defend America.” Because if he admits they actually
have “assisted in the efforts,” they would most likely have been breaking the law.
Good for them. Democrats in the Senate have rejected a Republican-backed cloture vote that would have forced an up-or-down vote on a Senate wiretapping bill that includes retroactive immunity for telecom companies. Encouragingly, only 48 senators voted for cloture, suggesting that the vote on the final bill might be close.
It remains to be seen if the Democrats have the spine to go on the defensive. If I’m reading things right, the president has threatened to veto any effort to temporarily expand the powers of the Protect America Act. In the president’s own parlance, he appears to be putting politics before the safety of Americans. So will the Democratic leadership fight fire with fire and tell the American public that the president is endangering American lives for the benefit of big telecom companies? I sure hope so, but I’m not going to hold my breath.
H.R. 5104 is a bill to extend the Protect America Act of 2007 by 30 days. It’s on the Suspension Calendar in the House, scheduled for consideration on Monday (1/28/08).
The Protect America Act, which broadened the government’s powers to eavesdrop on private conversations without court approval, expires Friday. Congress and the President are at loggerheads about how telecommunications surveillance should be administered, and whether telecommunications companies should be immunized from liability for alleged past violations of surveillance law.
Bills considered under “Suspension of the Rules” get limited debate and are not subject to amendment, but a two-thirds vote is required for passage.
So, what should Congress do? And why?
http://washingtonwatch.com/info/widget.php?id=200509532
Your vote is probably “Yes” if you think Congress should continue to negotiate with the President while existing surveillance continues.
Your vote is probably “No” if you think Congress should pass a longer-term extension or give the President greater powers. It’s also “No” if you think Congress should refuse further negotiations, either because these surveillance power are not so important, because they’re unconstitutional, or because political blame for collapsed negotiations can be pinned to the President.
But there are other ways to think about this bill. Vote your piece, and let’s hear your reasoning in the comments!
I missed a good opinion piece on REAL ID in the L.A. Times last week. The subhead of “The False Promise of REAL ID” gets its assessment of the recently issued regulations about right: “Homeland Security’s compromises make an ineffective law somewhat less damaging.”
Previewing his Monday State of the Union address, President Bush’s radio address today highlights the economic stimulus package and the push to give telecom companies immunity in the FISA bill.
The other urgent issue before Congress is a matter of national security. Congress needs to provide our intelligence professionals with the tools and flexibility they need to protect America from attack. In August, Congress passed a bill that strengthened our ability to monitor terrorist communications. The problem is that Congress set this law to expire on February 1st. That is next Friday. If this law expires, it will become harder to figure out what our enemies are doing to infiltrate our country, harder for us to uncover terrorist plots, and harder to prevent attacks on the American people.
Congress is now considering a bipartisan bill that will allow our professionals to maintain the vital flow of intelligence on terrorist threats. It would protect the freedoms of Americans, while making sure we do not extend those same protections to terrorists overseas. It would provide liability protection to companies now facing billion-dollar lawsuits because they are believed to have assisted in efforts to defend our Nation following the 9/11 attacks. I call on Congress to pass this legislation quickly. We need to know who our enemies are and what they are plotting. And we cannot afford to wait until after an attack to put the pieces together.
We may learn a lot about American public opinion on terrorism in the next few weeks.
If the Democratic Congress holds the line on immunity in the FISA bill and weathers the partisan attacks that follow, we’ll know that the administration’s terror-pandering has finally worn thin.
If Congress capitulates, we’ll re-learn the basic tenets of Public Choice theory holding that politicians are risk-averse and much more interested in reelection than principled policymaking.
It’s been called a “virtual privacy time bomb” by a prominent Congressman, something that an FTC commissioner believes should “really trouble all of us” and to which one policy group believes we should have a legal right to examine, correct, and/or delete. What is it?
Answer: Online behavioral marketing data.
And it will continue to be a hot topic for 2008, as the Google – DoubleClick merger progresses, the FTC collects public comment on self-regulatory principles, and New York State bill A09275 (introduced in response to the Facebook controversy) is further considered.
I have a kind of love/hate relationship with online behavioral marketing. Advertising that is better targeted to consumers helps support a lot of Internet web sites that otherwise might charge for their services. And I receive ads targeted to my tastes and preferences (yippee!). But there’s something about it that makes me feel uneasy, something that still doesn’t quite sit so well.
And thanks to my prior sentence, there may be Pepto-Bismol ads popping up on the web site hosting this blog. Indeed, behavioral advertising is the tracking of a consumer’s activities online – including the searches the consumer has conducted, the Web pages visited, and the content viewed – in order to deliver advertising targeted to the individual consumer’s interests. Google is the 1,000 pound gorilla in this space, as it sells its AdSense service to display targeted ads for content and for search results.
Continue reading →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.