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New "JUSTICE" Act Could Roll Back Telecom Immunity

ScuttleMonkey posted more than 4 years ago | from the little-brother-retaliates dept.

Privacy 263

Asmodae writes to tell us about a bill proposed in Congress that could roll back telecom retroactive immunity along with adding other privacy safeguards. The "Judicious Use of Surveillance Tools in Counter-Terrorism Efforts" (JUSTICE) Act advocates the "least intrusive means" of information collection and imposes many limitations on the process. "One of the most significant aspects of the JUSTICE Act is that it will remove the retroactive immunity grants that were given to the telecom companies that participated in the NSA warrantless surveillance program. The companies that cooperated with the surveillance program likely violated several laws, including section 222 of the Communications Act, which prohibits disclosure of network customer information. The immunity grants have prevented the telecommunications companies that voluntarily participated in this program from being held accountable in court."

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JUSTICE (-1, Flamebait)

Anonymous Coward | more than 4 years ago | (#29472127)

JUSTICE!? I want JUSTICE!!

I guess lawmakers are like Slashdotters who only read the headline.

Re:JUSTICE (1)

Romancer (19668) | more than 4 years ago | (#29472177)

I just have one thing to say to that.

Patriot Act.

Re:JUSTICE (3, Insightful)

Chyeld (713439) | more than 4 years ago | (#29472311)

Yes, while I can hope that this is actually a bill with no hidden gotchas, given it's using a red hot item for it's ticket in, I would expect all sorts of nasty DMCA like shit hidden it's recesses.

Does anyone else find that kind of creepy? (2, Insightful)

Gordonjcp (186804) | more than 4 years ago | (#29472799)

Having all these bills with names like "USA-PATRIOT" and "JUSTICE" (and a few I can't remember offhand) does sound rather Orwellian. If Britain is "sleepwalking into 1984", then the US seems to be racing towards it as fast as possible...

Re:JUSTICE (1)

Afforess (1310263) | more than 4 years ago | (#29472617)

No, no no. It's "For Great Justice!"

Re:JUSTICE (1)

Sulphur (1548251) | more than 4 years ago | (#29472725)

I suspect that there is a tidy market for acronym creator software. Especially if it is misleading or just plain wrong. One can start with the acronym and use the program to fill in the details. As I understand it, this corresponds to the actual process; one calls it something and is then told that it must be an acronym.

--

We do not repeat gossip, so listen carefully.

Re:JUSTICE (0)

Anonymous Coward | more than 4 years ago | (#29472869)

Why would you do that when you can hire PR consultants at >$300/hr to do that for you?

Cue the flying monkey right in... (1, Insightful)

RyuuzakiTetsuya (195424) | more than 4 years ago | (#29472143)

this is going to end well. I really hope that the crazy right wing are too tied up with healthcare reform to figure out that another one of their favorite intrusions into civil liberties is about to be abolished.

Re:Cue the flying monkey right in... (3, Insightful)

gujo-odori (473191) | more than 4 years ago | (#29472219)

If you really believe that the left is less intrusive of civil liberties than the right, you just don't have enough experience with the left. Or you're willfully ignoring it. They just usually attack different civil liberties than (some of) the right attacks, but you can bet your bottom dollar that once they have their highest priorities taken care of, they'll go after the rest. One of the first to go will be - no surprise - freedom to dissent. That's neither particularly left nor right, governments of all stripes tend to dislike criticism and will suppress it if they can, by any means they can.

Don't believe any of that? Try living and working in a communist country for a while. It'll open your eyes.

Re:Cue the flying monkey right in... (1)

jameskojiro (705701) | more than 4 years ago | (#29472373)

Both sides are in it to screw the average citizen....

Re:Cue the flying monkey right in... (4, Interesting)

sumdumass (711423) | more than 4 years ago | (#29472449)

Save your breath, this is all about charging windmills and being too ignorant to understand they are being manipulated and told to look in the other direction while something serious goes on. The weak will follow the lead who can play them the easiest. For some, it's the tele-evangelist saying give me money or god will kill my dog (or was it him), for others, it's politicians acting like they are squeaky clean by playing on the emotions of others to hide their own dirty work.

Here is the thing, the Telecoms already have immunity under existing laws if the administration presented them with acceptable documentation claiming to of had the authority to gather the information. Now, contrary to what anyone might think, Bush isn't dumb, I mean he got elected twice and convinced congress to almost unanimously take us into two wars as well as not pull us out by ending the funding. Some will claim that it was the people pulling Bush's strings that did that and even if it's true, there is nothing to make anyone believe that they magically stopped with the NSA TSP. So what I'm getting at is, it's highly likely that the telecoms were presented with authentic enough documentation that they will slide out from under any liability for breaking any laws. That always was the law ever since 1968 when the first wire tap laws were made. The problem the telecoms had was that the administration was claiming national security secrete making it a felony to present the documentation that would serve as their complete defense.

What this was originally about is sueing the telecoms to get information on who was being watched by the government so as they could either sue the government (and be rich bitch), sue the telecoms who couldn't answer with their affirmative defense without ricking prison time, (rich again bitch) or inform certain people of those actions the government was taking against them. This bill being considered does nothing but allow that to happen but the judicial system isn't really that stupid. Most likely, Obama would allow (either by court case or congress acting on his behalf) certain judges, most likely FISA judges to view the documentation the government presented the telecoms and affirm if it was official enough to satisfy the law for the complete defense. This means that the telecoms will still end up with immunity and the information will still remain secrete. Meanwhile, something more sinister and serious will be going on because Bashing Bush is just as important as Brittany Spears losing 5 lbs by taking ex-lax or what ever she has done lately that's more important then anything else.

It's just something to keep the idiots occupied. Bread and circuses so to speak.

Re:Cue the flying monkey right in... (0)

Anonymous Coward | more than 4 years ago | (#29472593)

you just can't spell "secret" can you?

Amnesty - not GCHQ (0, Troll)

NSN A392-99-964-5927 (1559367) | more than 4 years ago | (#29472647)

If you really believe that the left is less intrusive of civil liberties than the right, you just don't have enough experience with the left. Or you're willfully ignoring it. They just usually attack different civil liberties than (some of) the right attacks, but you can bet your bottom dollar that once they have their highest priorities taken care of, they'll go after the rest. One of the first to go will be - no surprise - freedom to dissent. That's neither particularly left nor right, governments of all stripes tend to dislike criticism and will suppress it if they can, by any means they can.

Don't believe any of that? Try living and working in a communist country for a while. It'll open your eyes.

If you really believe that the left is less intrusive of civil liberties than the right, you just don't have enough experience with the left. Or you're willfully ignoring it. They just usually attack different civil liberties than (some of) the right attacks, but you can bet your bottom dollar that once they have their highest priorities taken care of, they'll go after the rest. One of the first to go will be - no surprise - freedom to dissent. That's neither particularly left nor right, governments of all stripes tend to dislike criticism and will suppress it if they can, by any means they can.

Don't believe any of that? Try living and working in a communist country for a while. It'll open your eyes.

Having seen serious combat in many countries and *gagged* by the official secrets act there are some things I would like to post anonymously but am afraid slashdot would get a subpoena for my details so it makes no difference anon or not. Therefore I am going to jump in and tell you what has been occuring at GCHQ http://www.gchq.gov.uk/ [gchq.gov.uk] because no matter what I do or say on slashdot, I am pretty high up on the radar and my phone calls have been monitored too as I am trained in counter-espionage and ISTAR. Despite what the government tells you, it is easy to end up on a database as a threat or just for speaking your mind. There are secret files held on people and it does not matter whether you use the "Freedom of Information Act" you will never get access to those files. Wiretapping is redundant and "deep packet inspection" has been used by GCHQ for as long as I can remember with my career in the Mil going back to 1985 even on nix SLIP accounts. GCHQ have had the abilitiy to triangulate you using your Mobile/Cell phone since 1992! All your civil liberties are eroded beyond belief. Sorry if I rant too much but my reply to the topic is putting out an Amnesty and then after all the info-gathering getting punished. Remember all governments will and can change their minds without contridicting themselves. I say power to the people.

Re:Cue the flying monkey right in... (1)

Presto Vivace (882157) | more than 4 years ago | (#29472225)

dunno about that the politics of this may not sort itself out along conventional lines.

Re:Cue the flying monkey right in... (3, Insightful)

aurispector (530273) | more than 4 years ago | (#29472317)

Ok, so the government says to the telecoms "We need access to prevent terrorism, don't worry it's all ok." The telecoms say "Ummm, ok. You're the government so it's not like we can say no, and I guess we don't want any more planes crashing into buildings and stuff." Now the government is saying "Oh, remember when we said not to worry, it's all ok? Well, it's not ok after all." Now the telecoms are all like "WTF?!?!"

It's the same thing as when the white house said to the CIA "Torture those terrorists because they might know about a really bad terror plot. It's really important. Trust us, it's ok" So the CIA guys go "okey dokey, one waterboarded terrorist coming up". Now the government is all like "Um, sorry it wasn't ok. Now we're going to prosecute you CIA guys" and the CIA guys are like "WTF?!?!?"

Seriously, it's not the telecoms, it's the government. End of story. Our government doesn't have a freaking clue one way or the other. It's either torturing terrorists or giving them sympathy cards.

Re:Cue the flying monkey right in... (5, Insightful)

h4rr4r (612664) | more than 4 years ago | (#29472415)

The Nuremberg defense did not work the there, and should not be allowed here either.

The CIA folks should get to join the telcom CEOs in jail. Just because your boss told you to do something illegal does not make it right nor legal.

Re:Cue the flying monkey right in... (-1, Troll)

Anonymous Coward | more than 4 years ago | (#29472457)

The Nuremberg defense did not work the there, and should not be allowed here either.

So you're equating bugging Al-Qaeda operatives with gassing Jews in concentration camps?

Re:Cue the flying monkey right in... (1)

h4rr4r (612664) | more than 4 years ago | (#29472531)

Not at all, nice troll though.

That is the common term for this stule of defense. It states that "Befehl ist Befehl" or in English "order is order". It is called that because this is the most famous incident of it being used.

Re:Cue the flying monkey right in... (0)

Anonymous Coward | more than 4 years ago | (#29472819)

nice try, but by that logic, "Godwin's law" is utterly stupid. And we all know it's not,right? Mentioning the most important events of the last century is inexcusable!

Re:Cue the flying monkey right in... (3, Insightful)

element-o.p. (939033) | more than 4 years ago | (#29472693)

Nice play on emotions. Too bad there's no valid logic to bolster the emotional appeal.

Allow me to explain.

So you're equating bugging...

From GPP's post: "The CIA folks should get to join...in jail." The CIA was torturing people who have never been convicted in either a civilian court or a military tribunal. So much for "innocent until proven guilty"! And you bought right into it. When the telcos started delivering communications to the Feds without judicial oversight, they became guilty of breaking the law, too. Is gassing someone for their ethnicity equivalent to aiding and abetting illegal wiretapping? Of course not. But both are violations of the law, and both should be punished under the law. The punishment should reflect the severity of the crime (gassing > waterboarding > illegal wiretapping), but it's completely stupid to argue that, since wiretapping is not nearly as evil as gassing families of Jews, those who assisted with the wiretapping should receive a "get-out-of-jail-free" card.

...Al-Qaeda operatives...

Ummm...alleged Al-Qaeda operatives. Refer to my comment above.

Furthermore, Nazi Germany did, in fact, use similar tactics to rile up the German people against the Jews -- identify a bogeyman, play on the people's fears, then stir up a nation to villify an entire race of people. Read the comments here on /. about racial profiling to see if the same thing has happened in the U.S. Or better yet, watch the TSA's propaganda, excuse me, "training videos" that flight instructors have to watch every year if they want to remain legal. When I watched them, I wasn't sure if I should laugh or be horrified that they essentially are telling flight schools/independent instructors to be suspicious of people of Arabic heritage.

Re:Cue the flying monkey right in... (0)

Anonymous Coward | more than 4 years ago | (#29472575)

Except your boss can legally throw you in jail. The nazi's worked people as slave labor then burned them alive. The CIA folks listened to phone calls. Can you tell me which is worse?

Re:Cue the flying monkey right in... (1)

h4rr4r (612664) | more than 4 years ago | (#29472615)

I think you can figure that out.

Either way it has nothing to do with it, it is only called that because that was the most famous case in which it was used.

Much like the OJ defense is not the only time that defense has been used but is the most famous case of it.

Re:Cue the flying monkey right in... (2, Insightful)

DigiShaman (671371) | more than 4 years ago | (#29472679)

The CIA folks should get to join the telcom CEOs in jail. Just because your boss told you to do something illegal does not make it right nor legal.

The point here is that the Government previously said it was legal. Then after the fact, pull the rug out from underneath organizations in order to prosecute them.

Given that that it's congress that creates and changes law (judicial branch interprets them), I say the Nuremberg example doesn't apply. If it does, then we should never...EVER...trust the government now or in the future to infinity.

Re:Cue the flying monkey right in... (3, Informative)

bigstrat2003 (1058574) | more than 4 years ago | (#29472761)

The Nuremberg example has nothing to do with legality. It has to do with morality. The actions of the Nazis were legal in Germany at the time, but they were still heinous and wrong. Similarly, while the government may have told the telecoms that their acts were legal (which they may not even have been, because although IANAL, I would say that widespread warrantless wiretapping is in violation of the Constitution), that does not necessarily have bearing on whether the acts were wrong and should be punished.

Re:Cue the flying monkey right in... (2, Informative)

Daimanta (1140543) | more than 4 years ago | (#29472771)

"The point here is that the Government previously said it was legal. Then after the fact, pull the rug out from underneath organizations in order to prosecute them."

That's exactly what happened in Nuremberg. The nazi-government sanctioned violating dozens of rules and the people who executed those rules were later tried for following orders.

The idea of Nuremberg is that you cannot hide behind what the government orders.

Re:Cue the flying monkey right in... (1)

Sulphur (1548251) | more than 4 years ago | (#29472861)

So their defense is entrapment by estoppel? (Misled by trust IANAL)

--

Yo in a heap o trouble.

Re:Cue the flying monkey right in... (5, Insightful)

TheRaven64 (641858) | more than 4 years ago | (#29472489)

No, really, it's not okay. Once you establish the precedent that it's okay to break the law as long as someone in the executive branch told you to, you have handed an insane amount of power to the government. The correct response to this kind of request from the executive branch is to request confirmation from the judiciary and the precedent that you want to set is that not requiring this confirmation is dangerous to your future wellbeing.

Re:Cue the flying monkey right in... (0)

Anonymous Coward | more than 4 years ago | (#29472591)

Once you establish the precedent that it's okay to break the law as long as someone in the executive branch told you to, you have handed an insane amount of power to the government.

The executive branch already had that power. They decide how and when to enforce the law, after all.

Re:Cue the flying monkey right in... (3, Informative)

h4rr4r (612664) | more than 4 years ago | (#29472631)

Except for the little fact that they need the judiciary's approval for stuff like this, we call those approvals warrants.

The executive branch does not have the power to break the law, no matter what two republican presidents have suggested.

Re:Cue the flying monkey right in... (0)

Anonymous Coward | more than 4 years ago | (#29472669)

They didn't do it to help fight terrorism, but to ensure nice juicy government contracts and to not have the government get all fussy (unlike how things normally work) about insider trading.

Re:Cue the flying monkey right in... (3, Insightful)

dbet (1607261) | more than 4 years ago | (#29472681)

Your statement acts as if "the government" is a singular entity. Some government members asked the telecoms to break the law. Others are now saying they should be held accountable. And yes, you can say no to the government. If they come to my house and ask me to spy on my neighbor, I can say no.

If however, the telecoms were forced or coerced or threatened, that's another matter.

Re:Cue the flying monkey right in... (5, Interesting)

MightyMartian (840721) | more than 4 years ago | (#29472767)

The United States is supposedly a nation ruled by law. In a nation ruled by law, not even the government has the right to order you to break the law, and in such a nation, the government cannot possibly make a meaningful commitment to protect you as part of the bargain.

In short, the Telecoms and the CIA shouldn't have broken the law, not even for the President (who is not above the law either), and in doing so, no matter how strident the declarations of immunity, they put their necks out. If a future administration decides, for good or ill, to rescind any guarantees, you're are, as they say, up shit creek.

Obama will not allow it (1, Insightful)

Anonymous Coward | more than 4 years ago | (#29472513)

Obama initially opposed the retroactive immunity bill, but switched his stance before the vote (and received contributions from the telcos for it, just like all the flip-flopping congressmen did).

Having been bought, he won't risk buring any important bridges by biting the hand that fed him. Expect him to veto this bill (if it ever gets to his desk, which it probably won't, for the same reason given above).

Re:Cue the flying monkey right in... (2, Insightful)

Anonymous Coward | more than 4 years ago | (#29472519)

Let's say these evil telecom companies are charged. What then? Throw the building into jail? Of course not.
So what will happen is:
1) some executive who cooperated with his government will be thrown in jail (that's really going to improve your life, isn't it?), and teach everybody to stand up and resist any cooperation with the government (join your local militia today!).
and,
2) the telecom companies will get a gigantic fine to teach them a lesson! $50 zillion dollars to the government! That'll show them! Just don't be surprised when your next phone bill comes and there is a $25 "fine retirement surcharge". They'll need to get the money somewhere and take a guess where it's going to come from.

The bottom line: The only people getting screwed are people who only followed instructions from the government, and every single customer of the telecoms. The only people benefiting from this, are lawyers and Washington - the people directly responsible.

So yeah - let's go get those telcos and show them who's boss!

Re:Cue the flying monkey right in... (4, Interesting)

h4rr4r (612664) | more than 4 years ago | (#29472663)

The bottom line really would be that the $25 fee would only apply to those who buy services from these folks. As Qwest did not comply guess who lots of folks would be buying T1s from?

The entire point of fining a business is too encourage people not too do business with them by increasing their costs. The people who benefit from that are their competitors who obeyed the law.

Re:Cue the flying monkey right in... (3, Interesting)

dgatwood (11270) | more than 4 years ago | (#29472701)

Four words: piercing the corporate veil. Once the company is opened up to civil liability, lawsuits will be filed, and during discovery, those lawsuits will likely uncover information about who knew what and when. At that point, depending on what they turn up, criminal charges might be filed against some of them.

Re:Cue the flying monkey right in... (0)

Anonymous Coward | more than 4 years ago | (#29472655)

He's right. The right are so wrapped up fighting a public option that they're going to conveniently ignore this one. Hell, both sides will, and maybe that's why it's on the agenda right now. I hope it gets put back on when it can receive more scrutiny.

To be fair though, fixing health care *is* a good priority to have.

Effin Ay! (0)

Anonymous Coward | more than 4 years ago | (#29472165)

Fuckin' A baby!
While they are watchin' your hands, Kick'em in the Nads!

ooh (1)

nomadic (141991) | more than 4 years ago | (#29472175)

Finally, an acronym that might be completely the opposite of what it stands for.

Re:ooh (3, Informative)

nomadic (141991) | more than 4 years ago | (#29472191)

Oops, meant "might not be completely the opposite of what it stands for."

Re:ooh (2, Interesting)

ElKry (1544795) | more than 4 years ago | (#29472397)

So you meant completely the opposite of what your sentence stood for?

Re:ooh (3, Interesting)

denmarkw00t (892627) | more than 4 years ago | (#29472439)

Actually, you had it right the first time. You see, as pointed out above, this isn't really JUSTICE in any sense: the telecoms were doing what they're gov't asked them in a time of fear and urgency, and the telecoms said "well, we have two choices:"

1) "Not only is this illegal, but its also wrong to invade privacy like that. No." Government definitely doesn't listen and/or just ignores what the telecoms want from the FCC later down the road. Public gets mad when government is all like "Hey, we asked for help against these terrorists but [BIG TELCO] said 'No.'" Telcos are bad guys.

2) "Well, its wrong, but you're the government, and I'm scared. Yes." Government gets information, wiretapping becomes public knowledge, public gets upset and government introduces bills to take the blame from them and put it on the telcos. Telcos are bad guys.

No matter what, they didn't have a chance. Risk being unpatriotic now or risk being unpatriotic later, either way the government was right and the telcos were wrong, because thats the law. Sounds like sweet, sweet JUSTICE to me.

Re:ooh (0)

Anonymous Coward | more than 4 years ago | (#29472517)

1) "Not only is this illegal, but its also wrong to invade privacy like that. No." Government definitely doesn't listen and/or just ignores what the telecoms want from the FCC later down the road. Public gets mad when government is all like "Hey, we asked for help against these terrorists but [BIG TELCO] said 'No.'" Telcos are bad guys.

2) "Well, its wrong, but you're the government, and I'm scared. Yes." Government gets information, wiretapping becomes public knowledge, public gets upset and government introduces bills to take the blame from them and put it on the telcos. Telcos are bad guys.

Not quite. If they pick #2, they're breaking the law and they risk get prosecuted. If they pick #1 then they're not breaking the law which means they don't get prosecuted. And then they have to deal with a few people who are too afraid to stand up for their own rights who complain when companies follow the law. BFD.

Re:ooh (2, Insightful)

element-o.p. (939033) | more than 4 years ago | (#29472713)

Sometimes it's tough to do the right thing. Life's not fair, Santa Claus is really your mom and dad, etc. News at 11:00.

Re:ooh (2, Insightful)

dgatwood (11270) | more than 4 years ago | (#29472755)

#1: obey the law and require the government to actually take the trivial steps required to get warrants in a FISA court. You protect the public's rights, protect your own backside, and force government to follow its own rules.

#2: break the law and become criminals. You break the law and encourage the intelligence community to be lazy (get everything and sort through it later).

How is this a difficult choice again? #2 really doesn't help anyone. The only explanation I can think of for companies bending so easily is if they did so in exchange for the government looking the other way about something else. I'd be interested to find out what. :-)

Re:ooh (1)

bigstrat2003 (1058574) | more than 4 years ago | (#29472783)

"Not only is this illegal, but its also wrong to invade privacy like that. No." Government definitely doesn't listen and/or just ignores what the telecoms want from the FCC later down the road. Public gets mad when government is all like "Hey, we asked for help against these terrorists but [BIG TELCO] said 'No.'" Telcos are bad guys.

So, when someone might make me look bad if I don't murder someone for them, that absolves me of murder? No. Illegal is illegal, wrong is wrong, despite whatever cost it may have if you uphold those standards. No matter what kind of pressure they were under, the telcos are still responsible for their actions.

Re:ooh (0)

Anonymous Coward | more than 4 years ago | (#29472201)

Might NOT be, I assume?

Re:ooh (1)

Janek Kozicki (722688) | more than 4 years ago | (#29472233)

But it is "JUoSTiCTE" or "JUSTCTE". They can't compete with geeks creating acronyms...

is it constitunitional? (4, Interesting)

Dare nMc (468959) | more than 4 years ago | (#29472185)

hate to suggest it, but aren't retroactive laws mostly unconstitutional? I realize this is simply putting the punishments back into place that were in place when the acts were committed. They can remove the immunity that was inacted to block the EFF's civil lawsuits, but thinking they could be held criminally liable again my just be wishful thinking.

Re:is it constitunitional? (2, Interesting)

Anonymous Coward | more than 4 years ago | (#29472265)

If the TELCOs broke the law by willingly participating in the warrentless wiretapping, then there is NOTHING retroactive about this. What IS unconstitutional is that there was an act passed by congress saying that the TELCOs cannot be punished.

 

One thing I don't like about this JUSTICE Act is that, if it passes, it gives congress the idea that the prior retroactive immunity act was constitutional.

Re:is it constitunitional? (2, Insightful)

mpoulton (689851) | more than 4 years ago | (#29472411)

If the TELCOs broke the law by willingly participating in the warrentless wiretapping, then there is NOTHING retroactive about this. What IS unconstitutional is that there was an act passed by congress saying that the TELCOs cannot be punished.

Care to back that up with a citation? Article 1, Section 9 of the US Constitution prohibits the passage of ex post facto laws, which are those that criminalize an act which has already occurred (or increase the punishment for an act occurring prior to the legislation). The legislature most certainly can decriminalize prior acts, however. To do so is not ex post facto, because it does not impose a penalty on anyone for acts already committed. This occurs frequently. It is not clear, however, that congress could now re-criminalize what it previously granted immunity for - to do so may implicate 5th and 6th amendment issues if the responsible parties have disclosed information about their actions in the meantime in reliance on the immunity granted by congress. Even though the wiretapping was illegal when they did it, congress' grant of immunity may not be constitutionally reversible.

Re:is it constitunitional? (1)

element-o.p. (939033) | more than 4 years ago | (#29472773)

How about this:

Amendment IV [archives.gov]

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (emphasis mine)

No court order was given to search the communications of God and NSA only know how many people, nor was there any description of what/whose communications were to be intercepted. Therefore, Congress had no authority to decriminalize the telcos' actions in cooperating with an illegal request. The wiretapping was illegal when it was done. Congress LATER enacted a bill to provide immunity from what the telcos had already done. Rescinding that bill is not enacting an Ex Post Facto law.

Re:is it constitunitional? (1)

shentino (1139071) | more than 4 years ago | (#29472507)

One thing's for sure, you can't take away whatever immunity they may have been granted.

That IS an ex post facto law.

Re:is it constitunitional? (3, Insightful)

SlashDev (627697) | more than 4 years ago | (#29472305)

"but aren't retroactive laws mostly unconstitutional?" So are unconstitutional laws to begin with.

Re:is it constitunitional? (4, Insightful)

v1 (525388) | more than 4 years ago | (#29472349)

The durable facts that matter is that they committed an offense at the time it was illegal.

After the fact, they can be granted immunity, and it can be repealed, repeatedly even. The fact that they broke a a law that existed at the time cannot be changed. Only the present enforcement of the past violation can be changed.

They cannot of course change the definition of what was illegal in the past, or the scope, or the punishment. THAT would be unconstitutional.

Re:is it constitunitional? (0)

Anonymous Coward | more than 4 years ago | (#29472609)

The durable facts that matter is that they committed an offense at the time it was illegal.

Really? You know this how? To quote a certain ex-Vice President, no controlling legal authority has ruled what they did was illegal.

After the fact, they can be granted immunity, and it can be repealed, repeatedly even.

Once immunity is granted, it's granted. Repealing that immunity then would be criminalizing behavoir that was legal. That IS an ex post facto change.

The fact that they broke a a law that existed at the time cannot be changed.

And TOTALLY irrelevant once immunity was granted.

Only the present enforcement of the past violation can be changed.

They cannot of course change the definition of what was illegal in the past, or the scope, or the punishment.

But that's EXACTLY what you want done - take away immunity retroactively.

THAT would be unconstitutional.

Yep. It would be.

Hoist by your own petard.

Re:is it constitunitional? (0)

Anonymous Coward | more than 4 years ago | (#29472503)

but thinking they could be held criminally liable again my just be wishful thinking.
 
Yeah, feel good about it pal until someone passes a law that fucks you under the same banner. I'm sure you'll piss an moan on that day.
 
This idea of a law is one that all people can live by. You can't cheer this kind of shit on now and demand that it's unconstitutional later.
 
It sounds like you're on board with the bitches who change the law when it suits your purposes and want it changed back once it no longer does. That's part of what's fucking the honest man on the street. That makes you part of the problem in my eyes.

Re:is it constitunitional? (2, Funny)

sumdumass (711423) | more than 4 years ago | (#29472629)

Nothing will happen.

Under existing laws, if the government presented the telecoms with documentation claiming the government had authority to get the information, that documentation would be an affirmative defense against any criminal or civil action against the telecoms. This was in the title 3 provisions of the omnibus crime whatever act passed in 1968 and is still unchanged and in effect today.

The problem is that the documentation needed to prove the government claimed to have the authority is classified as national security secretes so giving it to the courts creates a criminal felony situation where the telecom's employees could be imprisoned for exercising a legal right of defense. Now the telecom immunity law was supposed to allow a court and the justice department to affirm whether or not documentation was presented sufficient enough to trip the affirmative defense provisions or not. Removing this would either require the telecoms to lose the civil lawsuit by default, in which an appeals court would likely over turn, or they will get immunity from prosecution and present the papers in court and national security information would be disclosed.

More then likely, the judge would review it in ex parte and dismiss the cases under the existing laws without disclosing the details at all. An appeals court already ruled government didn't have to allow this to happen which is why the immunity law was created in the first place.

Anyways, it would most likely present a situation where a case or two goes all the way to the supreme court before it gets ruled on the side of the telecoms once and for all. Half witted people are too eager to inject politics into this and let that over ride any sense of fairness. It's just wrong.

Re:is it constitunitional? (0)

Anonymous Coward | more than 4 years ago | (#29472691)

The laws that were broken were already in effect at the time they were broken. Repealing a retroactive law does not change this underlying fact :-)

Applying new laws retroactivly to punish people who would not otherwise have committed a crime is whats unconstitutional.

Bill Sponsors... (1)

thestudio_bob (894258) | more than 4 years ago | (#29472189)

Remember the names Russ Feingold (D-WI) and Dick Durbin (D-IL) come election time. They seem to be some of the good guys, but they didn't find a republic to co-sign the bill, so this has little chance to go anywhere.

How does that make any sense (1, Troll)

SuperKendall (25149) | more than 4 years ago | (#29472715)

They seem to be some of the good guys, but they didn't find a republic to co-sign the bill, so this has little chance to go anywhere.
Reply to This

It's insane to blame Republicans for not being able to pass a bill when the Democrats have a filibuster proof majority, AND a Democrat in the white house!

Republicans might help but if it does not pass it's just as much on the Democrats as the Republicans.

ex post facto (1, Insightful)

cmiller173 (641510) | more than 4 years ago | (#29472197)

However the constitutional protection against ex-post-facto laws would keep those companies from being charged with what they did in the past I would think. Or not, IANAL

Re:ex post facto (0)

Anonymous Coward | more than 4 years ago | (#29472253)

The immunity was ex post facto. Violate the Constitution to uphold the Constitution, or allow the Constitution to simply be violated. Perverse choice, isn't it?

Re:ex post facto (1)

idiotnot (302133) | more than 4 years ago | (#29472281)

They just work around it. See the bill of attainder they passed to tax the AIG bonuses. It was aimed squarely at one company's employees, which is blatantly unconstitutional. But they modified it just enough that it could theoretically apply to somebody else, too, and passed it.

Of course, there'll be a court fight on that one, too, eventually.

It's ironic, however, that they'd pass an unconstitutional ex post facto law while they're claiming they're doing it to protect constitutional liberties......

Re:ex post facto (1, Insightful)

Anonymous Coward | more than 4 years ago | (#29472319)

I don't think the idea here is to actually punish the telecom companies, (I don't think that was ever an intention) but to force them to testify and provide public record of wrongdoing.
Really, how could they say no? When bush era pseudo-secret police ask you to do something, presumably under the guise of "catching terrorists" what sort of options do you have?

Clearly something bad went down. I've got my money on "current political party in power using NSA wiretaps to spy on political opponents".

Re:ex post facto (1)

2short (466733) | more than 4 years ago | (#29472431)


An ex-post-facto law makes something illegal after it has happened.

Which really makes sense: If something was legal, passing a law making it retroactively illegal, and prosecuting people for things that were perfectly legal when they did them is obviously unjust, pretty much no matter what.

Passing a law making something legal, and/or forbidding prosecution of people who did that thing in the past, even though it was illegal might be a shabby cover-up. But it might be an obviously good thing; for example, not prosecuting fugitive slaves after the Civil War.

In this case, the immunity grant and immunity revocation determine whether the Government can prosecute them, now, for what they did then. Neither affect whether what they did was legal or illegal then; neither is ex post facto.

Re:ex post facto (1)

JorDan Clock (664877) | more than 4 years ago | (#29472469)

They're not making something illegal that was previously legal. They bill basically affirms that what they did was indeed illegal in the first place and the action to prevent prosecution was not legal.

Nothing to see here, move along... (2, Insightful)

idiotnot (302133) | more than 4 years ago | (#29472207)

Their guy got elected president, but has said that he doesn't support legislation like this. In many ways, Obama is only slightly different than Bush. This is fodder for rabid supporters, but doesn't have a snowball's chance in hell of actually passing.

It's also a damned stupid thing for them to do, because pandering to the fringe here only further hampers their party's electoral chances next year.

But, it's all good, I suppose, because the Administration's actions on the possible prosecution of government employees (CIA) sends the signal. Being hellbent for vengeance makes for an awfully short political future. In this case, it'll likely be for the President.

Re:Nothing to see here, move along... (1)

causality (777677) | more than 4 years ago | (#29472709)

In many ways, Obama is only slightly different than Bush.

Agreed. They all look like marionettes to me.

It's also a damned stupid thing for them to do, because pandering to the fringe here only further hampers their party's electoral chances next year.

It's a sad day when people who learn of a corporation illegally conspiring with the federal government to spy on the citizens and don't believe the corporation should do this with impunity are considered members of "the fringe." Really, that's a damned shame.

Re:Nothing to see here, move along... (0)

Anonymous Coward | more than 4 years ago | (#29472731)

Feingold does well in WI by doing what he thinks is right. He is an actual leader, unlike most politicians. If you vote for him, you know what you're getting. His opinion doesn't change with the wind as many politicians does.

Oh, come on (2, Interesting)

Bruce Perens (3872) | more than 4 years ago | (#29472217)

I don't see how that's going to be in the bill when and if it's passed. Obama made it abundantly clear his choice was to "move on", and the Democrats don't quite have the numbers they need to push that through, or the desire. Perhaps it's just a negotiating ploy to get something else out of the right.

Re:Oh, come on (1)

h4rr4r (612664) | more than 4 years ago | (#29472385)

I voted for him, less of two evils and all that jazz, and I must say he does not want to "Move on" he wants to cover up.

This is just further proof that we really only have one political party in this nation.

Devil's Advocate (-1)

CodeBuster (516420) | more than 4 years ago | (#29472237)

So the Department of Homeland Security rolls up in the black SUVs with guns and says "Give us what we want or we will shut you down" to AT&T, Sprint, Verizon etc...So they cooperate and give the government what they want (whether they like it or not since the alternative is being forced to close). Now the government, albeit with different elected officials, comes back years later and says, "we are going to investigate and possibly prosecute you for cooperating"? Can someone please explain why that is even remotely fair to the telecoms?

Re:Devil's Advocate (0)

Anonymous Coward | more than 4 years ago | (#29472323)

I don't think the Nurenmberg Defense [wikipedia.org] would work. They didn't have to comply if they didn't want to. How could the government just shut them down? Any sort of attempt at that would have drawn an incredible amount of attention.

Re:Devil's Advocate (5, Insightful)

h4rr4r (612664) | more than 4 years ago | (#29472355)

Because they should have said:
"Come back with a warrant"

In my job I have said that to police officers, well really I said "You will have to speak to our lawyer". Which is really just another way of saying the same thing.

Re:Devil's Advocate (3, Insightful)

TheRaven64 (641858) | more than 4 years ago | (#29472529)

Please mod this up some more (it's only on +3 now). The executive branch is not meant to be a dictatorship. If they come to you and ask you to do something that doesn't seem legal, then the correct response is to ask for confirmation from one of the other two branches of government, most commonly the judiciary. The the courts agree that the President has the power to ask you to do something, and it turns out that they are wrong, then you should have immunity. If you just did what the President asked without bothering to check that it's legal, then you should not.

Re:Devil's Advocate (0)

Anonymous Coward | more than 4 years ago | (#29472549)

Just remember, a spook is a criminal that works for the government.

Re:Devil's Advocate (1)

Delwin (599872) | more than 4 years ago | (#29472509)

For the exact same reason a soldier can be punished for following an unlawful order. Sure he was following orders (as the telecoms were) but following an unlawful order is not a defense.

I.E. use your brain. Sometimes you get in less trouble in the long run standing up to the government and doing the right thing.

Re:Devil's Advocate (4, Insightful)

2short (466733) | more than 4 years ago | (#29472637)


If someone demands they break the law at gun point, call the cops. Since that's not the case here,

If the government says "Give us this thing the law specifically requires you to demand a court order for", you should... demand a court order.
If they say, "Give it to us without a court order, or we'll shut you down", ask how they intend to shut down a major telecom without a court order. Try not to giggle.

Nobody in their right mind thought the alternative was "being forced to close" Notably, Qwest didn't. They seemed to have mastered the phrase "No, that's illegal."

They were legally required to not allow these wiretaps without a court order. This requirement was supposed to hold even if the government asked them to do it. This requirement was supposed to hold particularly, specifically, and exactly if the government asked. That's the whole point of the law: The government isn't allowed to ask for this, so don't give it to them.

Cooperation with the government is not the highest duty of citizens or corporations. Nor is it an affirmative defense to any criminal act.

Ex post facto (0)

Anonymous Coward | more than 4 years ago | (#29472239)

Do legislators even bother reading the Constitution [wikipedia.org] any more?

It was illegal when you first passed telco immunity because it was an Amnesty law [wikipedia.org] .

Now to make a law repealing it would be an ex post facto [wikipedia.org] violation.

Good work guys, soon the Constitution will only be suitable as toilet paper (just like my 401k).

Re:Ex post facto (3, Funny)

CorporateSuit (1319461) | more than 4 years ago | (#29472379)

Good work guys, soon the Constitution will only be suitable as toilet paper (just like my 401k).

At least if it's in the bathroom, some congressmen might actually READ it.

Re:Ex post facto (1)

bckrispi (725257) | more than 4 years ago | (#29472941)

Wouldn't count on it. They'd be too busy trying to solicit gay sex from the guy in the next stall.

Not ex post facto (1)

Chris Burke (6130) | more than 4 years ago | (#29472493)

Ex post facto is about changing the legality of actions taken in the past, relative to their legality when the action was taken.

At the time the actions in question were taken, they were illegal. After this bill is passed, they will be equally illegal. That there was some interim period in which that legality was changed due to an actual ex post facto law does not affect the constitutionality of this law. Nullifying an ex post facto law isn't itself ex post facto.

To use a Van Damme analogy, Time Cop isn't breaking his own rules against changing the timeline when he restores the time line after someone screws with it.

Re:Ex post facto (0)

Anonymous Coward | more than 4 years ago | (#29472723)

Amnesty laws are not illegal under the US constitution; see Calder v. Bull. In most cases they're clearly a "bad idea", and arguably unjust, but not illegal.

It's also unclear that repealing the retroactive immunity only, while keeping any immunity from the date of the amnesty law's passage forward, would be an ex post facto law, as it would not create or increase penalties above what they were at the time those acts were committed. However, it seems singularly unjust, if legal, to make such arbitrary changes; better to let it rest, IMHO, and focus on preventing it from happening again..

Re:Ex post facto (1)

element-o.p. (939033) | more than 4 years ago | (#29472795)

Sure they do -- just like ./'ers read the millions of comments above arguing about whether or not this is an ex post facto law (it's not, but IANAL, etc.).

Let it go already! (-1, Redundant)

Anonymous Coward | more than 4 years ago | (#29472259)

Seriously, can't people just get over this? The companies did what they did at the request of the government. It's done. Going back to punish them will not resolve a single thing. It's purely vindictive.

What needs to be done is to write a clear and concise law that tells them they absolutely can not do so again, no matter which government agency makes the request. The law should also make it clear and provide for sanctions for any government agency making such requests in the future.

Re:Let it go already! (1)

h4rr4r (612664) | more than 4 years ago | (#29472375)

Not doing anything sends the message that what they did was the right thing. Sending folks to jail would clear that up.

The law already says the first part, they chose to ignore it.

Re:Let it go already! (1)

MightyMartian (840721) | more than 4 years ago | (#29472801)

I think the nature of all of this clear. There is no need to make clear that which is already clear. The government could not legally ask them to do it, and they knowingly broke the law in doing it. Yes, there was some sort of Executive guarantee that they wouldn't get their asses kicked, but considering even that guarantee has no real force of law if Congress or the Executive later decides to rescind it (or more accurately, refuse to acknowledge its legitimacy), the Telcos should have known better. Perhaps in the future they will simply say "Tell you what, when the laws are changed to require it, we'll talk, until then, fuck off." I know it would take the Telcos a bit of courage to stop raping their consumers to actually demonstrate some capacity to tell the Executive to take a long ride on a slow train, but that is an expectation of all participants in society.

JUSTICE for both sides (3, Insightful)

gmuslera (3436) | more than 4 years ago | (#29472403)

The ones that started the problem, from workers of the NSA all up to G.W.Bush, passing for all in the congress that voted for that law, are accountable in any way for that privacy violations?

Probably those telcos aren't exactly saints, but here the blame is put in the wrong target.

Re:JUSTICE for both sides (1)

element-o.p. (939033) | more than 4 years ago | (#29472823)

Wish I had mod points. Much as I despise the telcos for their complicity, you have raised a really good point.

Re:JUSTICE for both sides (0)

Anonymous Coward | more than 4 years ago | (#29472833)

It's not just about blame, but also about providing leverage to find out what actually happened.
At least some of the players in this aren't as interested in punishing the Telcos, but in not letting the grant of immunity be used to prevent discovery.

I don't want to be flamed, but... (1)

TDyl (862130) | more than 4 years ago | (#29472425)

...does every single freaking US law have to have an acronym that is readable, or is that just BS? TD

Re:I don't want to be flamed, but... (1)

rpmonkey (840379) | more than 4 years ago | (#29472889)

Thank the Acronymic Legislation Labeling act of 2001 for that.

sorry, it's too late in the day for me to come up with a better acronym.

Responsibility and accountability (1)

Estragib (945821) | more than 4 years ago | (#29472465)

How about we stop worrying so much about prosecuting the people complying with the demands until we get to the people who were behind the demands?

Re:Responsibility and accountability (1)

h4rr4r (612664) | more than 4 years ago | (#29472501)

This is how we get those people. Without dragging the the first set of folks into court we will never get any information about the second set.

ob (1)

shentino (1139071) | more than 4 years ago | (#29472551)

Take off every constitution
You know what you doing
Move constitution
For great justice

Pardon? (1, Insightful)

schwit1 (797399) | more than 4 years ago | (#29472577)

What stops the President from issuing pardons? I'm assuming that if Bush could have he would have.

I have to wonder if the telcos overheard something compromising and that's why Obama flipped.

Re:Pardon? (1)

h4rr4r (612664) | more than 4 years ago | (#29472587)

Nope, they paid him off. He was at first against it, until he got a nice campaign contribution.

if it passes, chalk up 7 points for team lawyer (1)

proclivity76 (755220) | more than 4 years ago | (#29472585)

Follow the money. The telecommunications companies have billions. Trial lawyers are parasites and they go after healthy hosts.

Well this is a complicated issue (1)

Orion Blastar (457579) | more than 4 years ago | (#29472935)

Telecos usually have EULA's that say voice and data services cannot be used for illegal activities, and are suspect to monitoring for such activities. The Police, FBI, etc usually have a "reasonable cause" loophole that makes it so that they can bypass a warrant if they think someone is doing something illegal and there is no time for a warrant to get issued.

The problem is that when a warrant is served there is usually a leak in the government that tells the suspect that they are being monitored and they change their activity to avoid being arrested, this is corruption in our government.

I would like to see how this impacts the MPAA and RIAA cases where Telcos handed over IP ownership information from people who had IP addresses the MPAA and RIAA accused of piracy via file sharing. Maybe they won't be able to voluntarily hand that information out anymore without a warrant.

What needs to be done is the Patriot Act needs to be repealed and replaced with one that is Constitutional and keeps the suspect's rights and allows warrants to be issued faster to prevent them from being tipped off.

Right now the current system accesses voice call and Internet data and then does a keyword scan for trigger words and then logs the data. It isn't wiretapping everyone, but accesses the database and pulls up suspect data going to foreign telephones and IP addresses of known terrorist network ownership. I am sure there are false positives when people are joking around with bomb jokes and the like as well, so innocents are getting wiretapped as well as the guilty.

But getting back to the EULA, can an EULA violate the Constitution or any law? That is a good one, because if it cannot then any EULA can be found Unconstitutional and thus invalid. If someone breaks the Telco's EULA for voice or data does that give the Telco the right to have the government wiretap them or is a warrant still needed?

So far there haven't been any terrorist attacks on the USA main states since 9/11, but that doesn't necessarily mean that the warentless wiretappings have stopped it. There could be other factors like a better intelligence system, undercover agents, or people reporting suspicious activity leading to followups and investigations.

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