The New FISA Amendments and Immunity for Telecommications Companies
posted by Daniel Solove
For the past several months, Congress has been wrangling over how to amend the Foreign Intelligence Surveillance Act to allow for the NSA warrantless surveillance program. The fact that the NSA surveillance program was clearly illegal — even under charitable creative dubiously-plausible fantastical interpretations of the law — seems to have quickly been forgotten. The focus now is on how to make it all legal. After all, if the President violates the law, it’s much easier to change the law than to do anything about it.
We still only know a little bit about the NSA surveillance program. The best way for the public to learn more — for there to be true transparency and meaningful vetting of what the government is doing — is through the cases where plaintiffs are suing the telecommunications companies for complying with the program. Why? Because Congress has utterly failed to do its job in checking the Executive Branch.
Instead of operating as it should, insisting that its laws get followed, Congress — whether controlled by the President’s party or the opposing party — seems incapable of mustering any meaningful power against the Executive Branch, even one where the President’s approval ratings are extremely low.
According to the SF Chronicle, Democratic Senator Dianne Feinstein will support immunity for telecommunications companies:
In a statement at a hearing of the Senate Judiciary Committee, which is considering legislation to extend the Bush administration’s electronic surveillance program, Feinstein said the companies should not be “held hostage to costly litigation in what is essentially a complaint about administration activities.”
Although it is primarily a complaint about administration activities, the telecommunications companies are also governed by the law, and they voluntarily agreed to break it. Congress wrote the law to impose obligations directly on the telecommunications companies not to disclose information to the government. Moreover, Congress is doing nothing to address the Administration’s activities. Perhaps if Congress had more gumption — maybe even one vertebrae, let alone a spine — then we’d have more oversight and accountability for the Executive Branch. But that’s not the Congress we have, and it strikes me as immense chutzpah for Congress to limit judicial oversight of government surveillance when Congress is offering no oversight and limitation itself.
In testimony before Congress, an Administration official now asks us to redefine privacy:
Privacy no longer can mean anonymity, says Donald Kerr, a deputy director of national intelligence. Instead, it should mean that government and businesses properly safeguards people’s private communications and financial information.
If only privacy meant that there were genuine safeguards on people’s personal information. Unfortunately, these safeguards are the laws we have that mandate judicial oversight and accountability — the very laws that the Administration has ignored, and the very laws that are now being weakened and retroactively castrated so that we’ll have even less transparency, less oversight, less meaningful limitation on Executive power, and less accountability.
The Constitution and the laws that regulate government surveillance aim to set up a system that allows for surveillance so long as there is judicial and legislative oversight, as well as accountability. A baseline assumption that underpins these protections is that we have a government of checks and balances, where each branch exercise meaningful limitations on the others. But when this assumption is wrong, the system fails. When the limitations, the accountability, and the oversight are stripped away, there’s nothing but naked government surveillance by an Executive Branch bathed in unrivaled power. Executive officials can talk about “safeguards” and Congress can pass laws, but without a mechanism to ensure that the laws are followed and ensure against Executive overreaching, all of this is just empty rhetoric.
Basically, we have a set of rules for government surveillance but in times of crisis, it all doesn’t seem to matter. The Executive Branch reigns supreme. That is our de facto law. Congress just doesn’t want to say it, just as Mukasey doesn’t want to say that waterboarding is torture.
The lawsuits against the telecommunications companies are probably the last hope for more information about the NSA surveillance program. They are the last hope for any indication that violating the law has consequences — at least for some of the players. But Congress is about to shut the door. This sorry episode saps much of my hope for any meaningful limitation on government surveillance.
November 11, 2007 at 12:24 pm
Posted in: Privacy, Privacy (Law Enforcement), Privacy (National Security)
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Responses (11)
Dissent - November 11, 2007 at 12:40 pm
Once again, we agree, Dan.
But since I am not a lawyer, and you are, could you comment, perhaps, on an issue I raised in my blog entry: under our Constitution, can Congress retroactively strip me of civil recourse for breach of contract?
Not that they care, but I’m an AT&T customer, and I didn’t give AT&T any permission to turn over my communications to the NSA (if they did), in breach of their privacy policy and contract with me. Nor do I grant Congress my permission to give AT&T a “get out of jail free” pass. And most importantly, I do not give Congress my permission to waive my Fourth Amendment rights. The whole “national security” defense doesn’t quite fly when you remember that the administration approached the telecoms with the warrantless surveillance program as early as February 2001.
This Congress has totally abdicated its responsibilities and caved in to both the executive branch and corporate America.
Hippo - November 11, 2007 at 4:40 pm
When those that hyperventilate over the perceived abuses of the war on terror show a fraction of that concern for the real abuses of the war on drugs, I’ll start believing that the concerns are more than political gamesmanship.
Frank - November 11, 2007 at 5:50 pm
two comments:
1) There is some con law/fed courts stuff out there on whether congress can actually decide an ongoing court case like this. isn’t there a separation of powers issue here?
But i admit that in a case involving an antitrust suit by medical residents a few years ago, Congress just summarily ended the case by passing some bill that said something like “no activities from the time period of 19XX to the filing of the case can be used as evidence of anti-competitive conduct.” I think this case is described in Kristin Madison’s article on residency matching.
2) GG has further critique of Feinstein:
http://www.salon.com/opinion/greenwald/2007/11/10/feinstein/index.html
Orin Kerr - November 12, 2007 at 12:45 am
Dan writes: “[T]he telecommunications companies are also governed by the law, and they voluntarily agreed to break it. Congress wrote the law to impose obligations directly on the telecommunications companies not to disclose information to the government.”
Dan, didn’t Congress also write exceptions into the law permitting disclosure in some circumstances? And given that, can you explain why you appear to believe that those circumstances did not exist here? I’m particularly interested in your take on 18 U.S.C. 2511(2)(a)(ii).
(No relation to Donald Kerr, BTW.)
GTF - November 12, 2007 at 12:49 am
Verizon and Specter(Hershey, PA) go into a future with more money and bigger plans.
Daniel J. Solove - November 12, 2007 at 1:26 am
Orin,
Suppose you’re right, and the exceptions apply. Why not just let the cases proceed? They’ll be dismissed pursuant to the exception, and there is no need for retroactive immunity, right?
Second, 2511(2)(a)(ii) allows telecommunications companies to disclose if they are provided with a court order signed by a judge (which they weren’t) or with “a certification in writing that a person specified in section 2518(7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required.” Did this happen? I’m not sure if this was followed. Isn’t this a factual question for the courts to determine?
If it was, then AT&T can present facts to this effect. Just present the certification to the court, right? Why is retroactive immunity needed?
I see no reason why the courts can’t handle this issue and why retroactive immunity is necessary. If it’s all that easy, and 18 U.S.C. 2511(2)(a)(ii) applies, then why all the litigation over the state secrets doctrine? Why all the fuss over retroactive immunity?
So maybe you’re right, and everybody — the government, the telecommunications companies, the courts, and Congress — are missing something, namely 18 U.S.C. 2511(2)(a)(ii). If so, then immunity already exists in the statute, and there’s no need to do anything. But that’s certainly not how everybody’s acting. Why not?
Also, other statutes and constitutional rights are involved in the case, not just FISA.
Orin Kerr - November 12, 2007 at 2:39 am
Dan,
I don’t think the lawsuits will ever go anywhere under the states secrets doctrine; you never even get to the application of the statute. So the question becomes why not let the lawsuits get defeated under the state secrets doctrine as compared to by legislation. I don’t have strong feelings about that one, as they lead to the same result either way.
Putting the - November 12, 2007 at 11:18 am
A side – but important – point. Other than Congress and Law Professor say-so, what is the basis for the unsupportable claim that Congress has “oversight” over the Executive Brach. They are co-equal branches; the executive is not subordinate to Congress. Congress can pass laws, and has the impeachment power over executive branch officials (that presumably could be exercised against executive branch officials deemed delinquent in enforcing the laws). That – and an indirect power of the purse – is the only “oversight” power of which I am aware. So I think its high time we abandoned the use of the term Congressional “oversight” as misleading and wrong. The belief in such a responsibility places an unfair burden on Congress, which does not have this broad, High School Principal-like power and so cannot really use it, and it paints the executive branch as a rogue bunch when it really is not subject to Congressional “oversight” in the first place. Laws yes, impeachment yes, “oversight,” no way.
Putting the SEPARATION back into Separation of Powers - November 12, 2007 at 11:19 am
A side – but important – point. Other than Congress and Law Professor say-so, what is the basis for the unsupportable claim that Congress has “oversight” over the Executive Brach. They are co-equal branches; the executive is not subordinate to Congress. Congress can pass laws, and has the impeachment power over executive branch officials (that presumably could be exercised against executive branch officials deemed delinquent in enforcing the laws). That – and an indirect power of the purse – is the only “oversight” power of which I am aware. So I think its high time we abandoned the use of the term Congressional “oversight” as misleading and wrong. The belief in such a responsibility places an unfair burden on Congress, which does not have this broad, High School Principal-like power and so cannot really use it, and it paints the executive branch as a rogue bunch when it really is not subject to Congressional “oversight” in the first place. Laws yes, impeachment yes, “oversight,” no way.
Orin Kerr - November 12, 2007 at 5:39 pm
Putting the Separation,
I believe the basis is what Justice Scalia has called “the basic rule of life”: “He who pays the piper calls the tune.”
Putting the SEPARATION back into Separation of Powers - November 13, 2007 at 10:16 am
Orin – I recognize that your comment falls under your “drive-by” comment genre and, thus, is not to be taken particularly seriously. But, any implied notion that Justice Scalia would support this notion of congressional “oversight” — in the sense that the term is typically used these days — ought not go unanswered. The notion, of course, is risible. See Morrison v. Olsen (Scalia, J., dissenting) (“[T]he great security …against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.”) (quoting Federalist No. 51); see also id. (“The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers….”) (quoting Federalist No. 49); see also the rest of the opinion and Scalia’s other Separation of Powers contributions.
The point is – as I made earlier – the power of the purse is an indirect power over the Executive Branch, it does not grant FURTHER rights over executive branch officials beyond what they may spend. The fact that executive branch officials may nonetheless adjust their behavior because they want a favorable exercise of the spending power is not inconsistent with the proper understanding of the Separation of Powers – influence is not oversight. While Congress will be influenced by Supreme Court holdings and may tailor legislation to avoid future findings of unconstitutionality, I hope you would not say that the judiciary has “oversight” over the legislative branch.
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