Thursday, July 10, 2008

You may not know about the Foreign Intelligence Surveillance Act (FISA) legislation that was recently passed in Congress. The Act grants immunity to telecommunications companies (telecoms) regarding retroactive lawsuits. Because it was recently discovered that large telecommunications companies (e.g., AT&T, Comcast, T-Mobile, Verizon) have been spying on average Americans by turning over documentation of their phone and Internet habits, lawsuits were filed by those whose records were stolen—but because of new FISA legislation those lawsuits have been taken off the docket.

FISA in its current state is similar to measures that were championed by Vice President Cheney immediately after the events of 9/11.

In fact, FISA is a clear violation of the Fourth Amendment.

U.S. Constitution: Fourth Amendment --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.


Without probable cause, FISA enables “government agencies” (a term that is so broad it’s nearly meaningless) with the help of telecoms to record phone conversations, text message exchanges, and e-mail exchanges without a warrant (which effectively eliminates the Judicial branch of our government from the process—a crucial checks-and-balances step in the process that limits the power of the Executive branch and provides necessary oversight). The very foundation of our democracy is built upon the premise that none are above the law.

In fact, the passage of FISA has much more to do with shielding the telecoms from lawsuits and less to do with stopping terrorism. At issue is the idea of securing warrants. Under the previous FISA legislation, which was passed in the 1970s, a warrant was necessary before law enforcement could view information such as e-mails or listen in to phone conversations. The process of obtaining a warrant for such purposes had been streamlined after the events of 9/11 considerably. In many cases, most observers had stated that a warrant under the old version of FISA could have been procured within 24 hours. If the surveillance that occurred prior to the decision to obtain a warrant was successful there would be no reason to believe that obtaining the warrant and waiting an additional 24 hours would present a problem. It’s been proven by intelligence agencies worldwide that any terrorist event on par with the events of 9/11 would take years to plan and stage, giving authorities ample time to detect the activities of terrorists and thwart their plans. FISA allows government agencies, at the behest of the Exective branch, to conduct searches with the help of the telecoms without judicial oversight. Essentially this makes law enforcement judge and jury, which is contrary to the principles on which the United States was founded. Imagine a situation whereby it is legal for law enforcement officials to enter your home unannounced and without a warrant. FISA enables a search of your virtual “home.” Not only are your communications with others fair game but also other vital information held on your computer or in your phone. Purchase histories, social security numbers, credit histories, medical histories, and other types of information can now be brought in with the FISA net without your knowledge. This information can now be shared with others without your knowledge. Those who defend FISA, or who would like to see even broader legislation, counter the defenders of the Fourth Amendment with scurrilous accusations meant to call into question one’s patriotism. But those who defend FISA without a critical eye are ignoring history. As Lord Acton said, “Power tends to corrupt, and absolute power corrupts absolutely.” The Founding Fathers of the United States knew that oversight, or checks-and-balances, was the only stopgap against the type of corruption that turns public servants into despots.

The fear marketing used by the Bush Administration to advance their agenda has worked. Bush’s time in office has been marked by an aggressive push to increase the power of the Executive and the FISA legislation recently passed is another step in that direction. Most nations on earth do not enjoy the civil liberties that we take for granted. Even most highly industrialized nations in this technological age do not hold the idea of the rule of law dear.

“…an unprecedented campaign (Strange Bedfellows) [began] Tuesday to hold Democratic lawmakers accountable for caving in to the Bush administration on domestic spying. A group of high-profile progressives and libertarian Republicans are rolling out a new political action committee called Accountability Now to channel widespread anger over pending legislation (FISA) that would legalize much of the president's warrantless electronic surveillance of Americans, and grant retroactive legal immunity to telephone companies that cooperated with the spying when it was still illegal.” —Providence Journal

Barack Obama’s recent vote for passing the Foreign Intelligence Surveillance Act (FISA) after it was revised is being called a cave-in by the far left and merely a compromise by others. Obama can’t be viewed as soft on national defense if he wishes to succeed in his bid for the presidency and this is a step in that direction. I hope that he follows through on his claim to provide the kind of oversight necessary to keep FISA legitimate. Throughout American history, politicians on both sides of the aisle have used various forms of domestic spying as a tool to advance their agendas. That’s why recent FISA legislation is such a loss for average Americans. FISA proponents have sold it as a vote for the fight against terrorism when the existing legislation wasn’t in true need of an overhaul. The new FISA legislation opens the floodgates to every kind of potential violation of privacy.

The true danger of wiretapping lies in its lure of invisibility. Bush’s version of FISA places the telecoms above the law.

And some of this makes me think of one of the best British TV shows ever—The Prisoner. Not just because Patrick McGoohan drove a Lotus Seven, but because of the kooky dialog and the swinging Sixties sets.

Just don’t be surprised if someday you are asked for “information.” [Where am I? In “the village.” What do you want? Information. ]

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