The New FISA Amendments and Immunity for Telecommunications Companies

Daniel Solove
Founder of TeachPrivacy

NSA Surveillance

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.

Originally Posted at Concurring Opinions

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

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