A Damning FISA Summation & Supreme Court Follies

Why the new wiretapping law is a lot worse than you think

Whatever Hoyer and Pelosi—and even Obama—say, this amounts to a retroactive blessing of the illegal program, and historically it means that the country will probably be deprived of any rigorous assessment of what precisely the administration did between 2001 and 2007. No judge will have an opportunity to call the president’s willful violation of a federal statute a crime, and no landmark ruling by the courts can serve as a warning for future generations about government excesses in dangerous times. What’s more, because the proposal so completely plays into the Bush conception of executive power, it renders meaningless any of its own provisions. After all, if the main lesson of the wiretapping scandal is that we need more surveillance power for the government, what is to stop President Bush—or President Obama or President McCain—from one day choosing to set this new law aside, too? “How will we be judged?” Sen. Chris Dodd, D-Conn., asked in a stirring speech deploring the legislation yesterday. “The technical argument obscures the defining question: the rule of law, or the rule of men?”

Sadly, the Democratic Congress and its presumptive nominee for President has answered — and it’s the same one this Administration has been giving since 9/11.

Of course, now that everyone in DC is going to be packing heat, there may not *be* a government by November. And Dahlia Lithwick passes along the obvious question about the decision:

I am reading the decision in Heller as fast as I can and will post my thoughts as soon as possible. The headline is that the court decided 5-4 (no mushy plurality here) that the D.C. handgun ban and the trigger-lock requirement violate the individual right to bear arms as protected under the Second Amendment. But I must first pass along this rather brilliant observation from professor Stephen Wermiel from American University, who wonders why none of the dissenters cautioned the majority that today’s decision “will almost certainly cause more Americans to be killed.” (Boumediene, Scalia, J. dissenting.)

A Little Blowback

But, given this Congress, I doubt anything will come of it: Laptop Searches in Airports Draw Fire at Senate Hearing

“If you asked most Americans whether the government has the right to look through their luggage for contraband when they are returning from an overseas trip, they would tell you ‘yes, the government has that right,’ ” Senator Russ Feingold, Democrat of Wisconsin, said Wednesday at the hearing of a Senate Judiciary subcommittee.

“But,” Mr. Feingold continued, “if you asked them whether the government has a right to open their laptops, read their documents and e-mails, look at their photographs and examine the Web sites they have visited, all without any suspicion of wrongdoing, I think those same Americans would say that the government absolutely has no right to do that.”

In April, the United States Court of Appeals for the Ninth Circuit ruled that the Customs and Border Protection agency could conduct searches without reasonable suspicion.

Covered on Furdlog earlier, but I have class now, so I’ll add the link later (from 2008 April 21 and 2008 Jan 23)

The Senate Judiciary Committee hearing: Laptop Searches and Other Violations of Privacy Faced by Americans Returning from Overseas Travel

How To Get Privacy Legislation

Use search data to upset the right constituency. In the early days of the nuclear business, there was something called “tickling the dragon’s tail.” Google may have found that the right kind of subpoena can be a modern equivalent: What’s Obscene? Google Could Have an Answer

That is often a tricky question because there is no simple, concrete way to gauge a community’s tastes and values.

The Internet may be changing that. In a novel approach, the defense in an obscenity trial in Florida plans to use publicly accessible Google search data to try to persuade jurors that their neighbors have broader interests than they might have thought.

In the trial of a pornographic Web site operator, the defense plans to show that residents of Pensacola are more likely to use Google to search for terms like “orgy” than for “apple pie” or “watermelon.” The publicly accessible data is vague in that it does not specify how many people are searching for the terms, just their relative popularity over time. But the defense lawyer, Lawrence Walters, is arguing that the evidence is sufficient to demonstrate that interest in the sexual subjects exceeds that of more mainstream topics — and that by extension, the sexual material distributed by his client is not outside the norm.

Later: William Saletan’s Dr. Jekyll and Mr. Orgy: Sexual Hypocrisy and the Internet is interesting, but I think he unsteates the fact that, in the absence of good data, any data (or, for that matter, anything that merely looks like data) may be seized upon as meaningful – possibly the entire explanation for internet advertising, in fact.

Glenn Greenwald on Obama Worship

Obama’s support for the FISA “compromise”

In the past 24 hours, specifically beginning with the moment Barack Obama announced that he now supports the Cheney/Rockefeller/Hoyer House bill, there have magically arisen — in places where one would never have expected to find them — all sorts of claims about why this FISA “compromise” isn’t really so bad after all. People who spent the week railing against Steny Hoyer as an evil, craven enabler of the Bush administration — or who spent the last several months identically railing against Jay Rockefeller — suddenly changed their minds completely when Barack Obama announced that he would do the same thing as they did. What had been a vicious assault on our Constitution, and corrupt complicity to conceal Bush lawbreaking, magically and instantaneously transformed into a perfectly understandable position, even a shrewd and commendable decision, that we should not only accept, but be grateful for as undertaken by Obama for our Own Good.

Hell no! Greenwald’s got lots of links to other commentary on this shameful cave-in by the presumptive Democratic nominee. “Change,” indeed.

Dahlia Lithwick Raises A Question Bigger Than Torture

Substitute “Constitution” for “anti-torture policy” in the second excerpted paragraph below and note the even greater aptness of the question she poses: Authorizing torture with the very best of intentions

If we manage to erase one hideously bad idea from our collective memories of the law in the war on terror, please, please let it be this one: Legal questions are neither “hard,” nor “novel,” nor “open” merely because someone at the White House didn’t like the legal answer that followed them. Easy questions don’t morph into tough ones just because you can find some guy willing to argue the other side. And if—as both Sands and Lederman have observed—Haynes and his colleagues shut down efforts by Jane Dalton, the legal adviser to the chairman of the Joint Chiefs of Staff, to review the techniques, then we truly are witnessing something astonishing: Haynes turned an easy legal question into a hard one by avoiding it altogether.

Which brings us back to Attorney General Mukasey, the editors at the Wall Street Journal, and Jim Haynes. Is it enough to say in hindsight that the men who knowingly gutted the American anti-torture policy were genuinely terrified of the next attack, genuinely bending to intense White House pressure, or genuinely behaving in “good faith?” I suspect they were genuinely all of the above. Are we prepared to commit ourselves to a legal regime—particularly in times of great national fear and uncertainty—in which the good faith of those who act, and act in secret, is all that matters?

An Experiment

The e-Book Test: Do Electronic Versions Deter Piracy

[M]my own publisher, O’Reilly, is about to offer a bunch of its bestsellers for sale on the Amazon Kindle.

Early next month, the company will also start selling electronic versions of certain books with no copy protection. For a single price (cheaper than the printed-book price), the package will include the book in three formats: PDF, Mobipub (compatible with the Amazon Kindle), and Epub (soon to be compatible with the Sony Reader).

Anyway, I’ve agreed to try an experiment involving one of my books (”Windows Vista: The Missing Manual”): to offer it as part of that buy-the-electronic-versions program.

[…] I’m encouraging O’Reilly to adopt some antipiracy steps […] [t]hat might deter people from posting their copies online for all to download.

This is not, of course, quite what Kevin Kelly is proposing; I’m not offering the book for free. But at least I’m defusing the argument that says, “The only reason people are pirating your books is that you’re not offering e-versions for legitimate sale.”

Now, all kinds of factors affect a book’s sales over time: the seasons, the economy, the popularity of the topic, the age of the book and so on. Even my mentioning this experiment here may skew the results. As I wrote originally, there’s no way to conduct a perfect sales-comparison without creating a parallel universe. So I’m not sure how conclusive the results will be.

Even so, I’ll report back to you in a few months. […]

Ramming HR 6304 Through

The power of process — although the Thomas summary of HR 6304 looks typically benign (referred to Committee, etc.) a look at the related HR 1285 shows what’s really going on:

6/19/2008 5:35pm:
The House Committee on Rules reported an original measure, H. Rept. 110-721, by Mr. Arcuri.

6/19/2008 5:35pm:
All points of order against consideration of the bill are waived except those arising under clause 9 or 10 of rule XXI.

6/19/2008 5:37pm:
Placed on the House Calendar, Calendar No. 240.

And HR 110-721?


The resolution provides for consideration of H.R. 6304, the `FISA Amendments Act of 2008,’ under a closed rule. The resolution provides for one hour of debate equally divided among and controlled by the chairman and ranking minority member of the Committee on the Judiciary and the chairman and ranking minority member of the Permanent Select Committee on Intelligence.

The resolution waives all points of order against consideration of the bill except those arising under clause 9 or 10 of rule XXI. The resolution provides that the bill shall be considered as read. The resolution waives all points of order against provisions of the bill. The resolution provides one motion to recommit with or without instructions. Finally, the resolution permits the Chair, during consideration of the bill, to postpone further consideration of it to a time designated by the Speaker.

Note that clauses 9 & 10 are about the outcome of conferences, and whether one can contest “germane” amendments from conferences — hardly going to be effective since, of course, the bill hasn’t even been approved by either house of Congress. So, no points of order at all.

Also, the NYTimes’ Congress Strikes Deal to Overhaul Wiretap Law.

The proposal — particularly the immunity provision — represents a major victory for the White House after months of dispute.

“I think the White House got a better deal than even they had hoped to get,” said Senator Christopher S. Bond, Republican of Missouri, who led the negotiations.

The White House immediately endorsed the proposal, which is likely to be voted on in the House on Friday and in the Senate next week.

While passage seems almost certain in Congress, the plan will nonetheless face opposition from lawmakers on both political wings, with conservatives asserting that it includes too many checks on government surveillance powers and liberals asserting that it gives legal sanction to a wiretapping program that they maintain was illegal in the first place.

Senator Russ Feingold, Democrat of Wisconsin, who pushed unsuccessfully for more civil liberties safeguards in the plan, called the deal “a capitulation” by his fellow Democrats.

[…] The arcane details of the proposal amount to a major overhaul of the landmark surveillance law known as the Foreign Intelligence Surveillance Act, which Congress passed in 1978 after the abuses of the Watergate era. But much of the debate over the bill in the last six months has been dominated by the separate question of whether to protect the phone companies from legal liability for their role in the eavesdropping program.

On that score, the bipartisan proposal marks a clear victory for the White House and the phone companies.

The proposal allows a district judge to examine what are believed to be dozens of written directives given by the Bush administration to the phone companies after the Sept. 11 attacks authorizing them to engage in wiretapping without warrants. If the court finds that such directives were in fact provided to the companies that are being sued, any lawsuits “shall be promptly dismissed,” the proposal says.

Even Democratic officials, who had initially opposed giving legal immunity to the phone companies, conceded there was a high likelihood that the lawsuits would have to be dismissed under the standards set out in the proposal. That possibility infuriated civil liberties groups, which said the cursory review by a district judge would amount to the de facto death of the lawsuits.

“No matter how they spin it, this is still immunity,” said Kevin Bankston, a senior lawyer for the Electronic Frontier Foundation, a pro-privacy group that is a plaintiff suing over the wiretapping program. “It’s not compromise; it’s pure theater.”

See What Nancy Pelosi, Steny Hoyer and Fred Hiatt mean by “bipartisanship”

Later: O-M-G — Obama says he supports FISA compromise — right now, it’s going to be a tough Election Day – *this* is the candidate for “change?”

Privacy Decision from the 9th Circuit

Your boss shouldnt read your text or e-mail messages without an OK, court sayspdf

A federal appeals court Wednesday sharply limited the ability of employers to obtain e-mails and text messages sent by employees on company-financed accounts.

The text message portion of the ruling, issued by the U.S. 9th Circuit Court of Appeals, will affect all employers who contract with an outside provider for messaging, as most do. Access to e-mail would be barred if the employer contracts out its e-mail service rather than maintaining an internal server to handle it.

A majority of companies keep employee e-mail on their servers, analysts said. […]

The ruling also gives all government workers 4th Amendment protection against searches of text and e-mail communications by their bosses, lawyers said.

“This ruling is a tremendous victory for your online privacy, helping ensure that the 4th Amendment applies to your communications online just as strongly as it does to your letters and packages,” the Electronic Frontier Foundation, a nonprofit group that advocates civil liberties in the digital world, said in an online posting.

The opinion: QUON V. ARCH WIRELESS, INC. (local copy)

Appellants assert that they are entitled to summary judgment on their Fourth Amendment claim against the City, the Department, and Scharf, and on their California constitutional privacy claim against the City, the Department, Scharf, and Glenn. Specifically, Appellants agree with the district court’s conclusion that they had a reasonable expectation of privacy in the text messages. However, they argue that the issue regarding Chief Scharf’s intent in authorizing the search never should have gone to trial because the search was unreasonable as a matter of law. We agree.

Slate/Volokh posting — Ninth Circuit Finds Fourth Amendment Protection In Text Messages