US Congress Approves Warrantless Wiretapping – 293 to 129

The fourth amendment to the US Constitution took a serious hit today. Congress has just approved warrantless wiretapping. The news is leaving many civil rights activists disappointed.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

In a move that strangely resembles what happened in Sweden two days ago, in spite of fierce opposition, the US congress has approved immunity for Internet Service Providers and telecommunication companies who participated in the president backed warrantless wiretapping program in the United States. All of this was approved in spite of fierce opposition to telecom amnesty which is found in the current FISA legislation.

From a press release on the Electronic Frontier Foundation (EFF):

Privacy rights and the rule of law took a serious blow today when the House of Representatives passed blanket retroactive immunity for phone companies that participated in the president’s warrantless surveillance program. The FISA Amendments Act, H.R. 6304, which House Leadership rushed to the floor today after its introduction yesterday, passed by a vote of 293 to 129. The Senate is expected to vote on the bill next week.

The bill was touted as a bipartisan “compromise” on the issues of electronic surveillance and immunity. But in fact it requires dismissal of lawsuits against companies like AT&T that participated in the program as long as the companies received a piece of paper from the government indicating that the surveillance had been authorized by the president and was determined to be lawful.

“Immunity for telecom giants that secretly assisted in the NSA’s warrantless surveillance undermines the rule of law and the privacy of every American,” said EFF Senior Staff Attorney Kevin Bankston. “Congress should let the courts do their job instead of helping the administration and the phone companies avoid accountability for a half decade of illegal domestic spying. If this legislation passes the Senate and is signed into law, the American people will have lost their last best chance to discover the true scope of the president’s wiretapping program and to determine whether or not the law was broken.”

“We are deeply disappointed that the House Leadership, which was so courageous in its previous opposition to telecom immunity, caved to the Administration’s fear-mongering and put this seriously flawed legislation on the floor for a vote,” said Bankston. “We look to leaders in the Senate who value the rule of law to stand up and strongly oppose this blanket immunity for telecom lawbreakers, and in particular urge Senator Barack Obama to lead his party in rejecting this false compromise.”

EFF wasn’t alone on this sentiment. Cory Doctorow, editor of one of the internets most popular blogs had comments of his own.

“Senate Democrats covered themselves in shame today,” Doctorow writes, “joining with Republicans to pass a bill granting amnesty to the cowardly telephone companies who helped the President’s office with its illegal bulk-wiretapping campaign that spied on every American call and email without any judicial oversight. What’s more, the bill also allows this to continue going on in the future. Who needs the fourth amendment?”

The fourth amendment to the US constitution states:

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.

Further reading: Wikipedia entry

It seems that this law still has to be approved by the Senate before it is signed by the president before it becomes law. The hope is that the senate will vote this down, though some may point out that the senate is run by the republicans, the party pushing for this legislation in the first place.

Update: ACLU has issued a press release on the matter. From the press release:

“It’s Christmas morning at the White House thanks to this vote. The House just wrapped up some expensive gifts for the administration and their buddies at the phone companies. Watching the House fall to scare tactics and political maneuvering is especially infuriating given the way it stood up to pressure from the president on this same issue just months ago. In March we thought the House leadership had finally grown a backbone by rejecting the Senate’s FISA bill. Now we know they will not stand up for the Constitution.

“No matter how often the opposition calls this bill a ‘compromise,’ it is not a meaningful compromise, except of our constitutional rights. The bill allows for mass, untargeted and unwarranted surveillance of all communications coming in to and out of the United States. The courts’ role is superficial at best, as the government can continue spying on our communications even after the FISA court has objected. Democratic leaders turned what should have been an easy FISA fix into the wholesale giveaway of our Fourth Amendment rights.

“More than two years after the president’s domestic spying was revealed in the pages of the New York Times, Congress’ fury and shock has dissipated to an obedient whimper. After scrambling for years to cover their tracks, the phone companies and the administration are almost there. This immunity provision will effectively destroy Americans’ chance to have their deserved day in court and will kill any possibility of learning the extent of the administration’s lawless actions. The House should be ashamed of itself. The fate of the Fourth Amendment is now in the Senate’s hands. We can only hope senators will show more courage than their colleagues in the House.”

Update 2: The EFF has released an additional news update entitled “House Falls Down on the Job”. From the posting:

While Speaker Pelosi and President Bush describe it as a “balanced bill” with “bipartisan support,” the millions of Americans whose privacy rights have been violated by the President’s illegal spying program seem to have been left out of the equation.

Senator Bond’s gloating statement to the New York Times showed the true picture: “I think the White House got a better deal than even they had hoped to get.” The Washington Post wrote that the bill “hands President Bush one of the last major legislative victories he is likely to achieve.” And the San Francisco Chronicle, writing from Speaker Pelosi’s home district, called the vote “weak, timid, spineless.”

To say that EFF is disappointed in the House Leadership’s support for this bill is an understatement. Speaker Pelosi and Majority Leader Hoyer, so vocal in their opposition to telecom immunity last March, capitulated to a dangerous “compromise” that gives the telecoms and the Bush Administration what they have been demanding for over a year: Protection from court cases that threaten to uncover the extent of the President’s illegal spying program.

Many Democrats stood up for the rule of law, and they deserve our thanks. Senators Conyers and Nadler have been consistent and vocal in their staunch opposition to immunity. Senator Feingold has spoken out as well, saying that the bill “is not a compromise, it is a capitulation.”

The EFF is urging everyone to contact their senator to oppose retroactive immunity.

Drew Wilson on Twitter: @icecube85 and Google+.

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