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November 20, 2007

Warrantless Spying and Telecom Immunity

Congress is still attempting to fix and perfect the Protect America Act (PAA). We opposed this bill back in August. In haste, it was passed. It was a terrible bill that undermined the already tissue-paper thin privacy protections that the Foreign Intelligence Surveillance court provided.

Some of you are sticklers for detail. That’s good. You should be. But the details in this case are a jumbled mess, full of technicalities. And we would be the first to admit, we don’t understand every detail. But we’ve posted a report on our blog that goes into greater detail about what just happened on the Senate side.

But there’s good news, overall. We’re winning!

Until last week, leaders of our coalition thought we were on the ropes. They thought a bill nearly as bad as the PAA was going to pass, with immunity for the major telecoms that permitted vacuum sweeps of their networks likely to pass as well. The immunity part was particularly discomforting because we’ve defeated this several times over the last two years.

But then, things started to happen. We are in a coalition, so we cannot take full credit. But we believe it was everyday Americans, including you DC Downsizers, communicating with Congress, which caused the Earth to move, even if only a little.

We cannot afford to take the Congressional, two week holiday off. We have more “Earth moving” to do.


In the House, the RESTORE Act was passed last week. This bill is the best offering we’ve seen yet. It’s far from perfect, and we can’t bring ourselves to endorse it, as we believe that repealing the PAA, or allowing the PAA to expire (which it does, in February), is the ideal result. But if something were to pass, this is the best thing Congress has presented thus far.


The Senate Intelligence Committee passed a terrible bill that gave the Bush Administration virtually everything it wanted. At that point, we thought all was lost.

But the Senate Judiciary Committee completed their “markup” of the FISA Amendments Act (FAA) last week, and issued a bill. Notably, the Chairman, Patrick Leahy of Vermont, made a “strong move,” using his power as Chair, to amend the language on his own. And when he did so, he made several significant improvements. But, once again, we think simply allowing the PAA to sunset, replaced by nothing, is the ideal solution.

As we wrote earlier, you can read a detailed report of the improvements the Senate Judiciary Committee made to the bill, thanks to your pressure.

Please, keep up the pressure.


But there’s still the issue of Immunity, and while we’ve made progress, we’re still not home free.

Our coalition partner, The Electronic Frontier Foundation (EFF) filed a class-action lawsuit on behalf of AT&T’s customers. The suit accuses the telecom giant of violating the law and the privacy of its customers by collaborating with the National Security Agency (NSA) in its massive, illegal program to wiretap and data-mine Americans’ communications.

This lawsuit arose from news reports in December 2005, which first revealed that the NSA has been intercepting Americans’ phone calls and Internet communications without any court oversight and in violation of the privacy safeguards established by both the Congress and the Constitution.

But the government did not act — and is not acting — alone. EFF’s case includes undisputed evidence that AT&T installed a fiber optic splitter at its facility at 611 Folsom Street in San Francisco. From there, they made copies of all emails, web browsing, and other internet traffic — to and from AT&T customers — and provided those copies to the NSA. This copying includes both domestic and international Internet activities of AT&T Worldnet customers. EFF is suing to stop this illegal conduct and hold AT&T responsible for violating the law and the fundamental freedoms of the American public.

But AT&T is not alone. Verizon and others also have cooperated with kind of ongoing dragnet surveillance of millions of ordinary Americans. Qwest, all alone, refused to comply and instead demanded a FISA Court order for specific persons.

The major telecoms have sought retroactive immunity. They’ve invested heavily in several Congressmen and brought in big hired guns, like former Attorney General John Ashcroft, to lobby for their position. Congress desperately wanted to give these corporate titans the immunity they sought. But you and tens of thousands of other activists around the country have blown the whistle.

And EFF put the icing on that cake last week by bringing a former AT&T Technician, now turned whistleblower, Mark Klein, to Washington, to testify before Congress, and, more importantly, testifying to the national media. He was effective. “If they’ve done something massively illegal and unconstitutional — well, they should suffer the consequences,” Klein said. “It’s not my place to feel bad for them. They made their bed, they have to lie in it.”

And, obviously, we agree.

However, Congress really, really wants to do something — ANYTHING — for the big telecoms. And while this Thanksgiving holiday break is going on, the committee staffs are looking at several “in-between” options, which they will probably spring on us December 3rd, including…

* SUBSTITUTION. Government takes on the role of defendant on behalf of the telecoms. They take the blame, wage the legal battles, and, ultimately, using taxpayer funds, pay-out any damages, which does seem like adding insult to injury. Substitution is as bad as immunity. The government will simply hide behind national security secrecy claims to diminish discovery. With Substitution, it is unlikely enough evidence could be collected to win a case, let alone obtain the standing necessary to keep the case from being dismissed.

* INDEMNIFICATION. This is not as bad, but still awful. With Indemnification the telecoms don’t have to pay for their crimes. Discovery could still go forward, but the telecoms couldn’t be sanctioned in the end. This would remove consequences from all those companies who violated American’s rights. It would also kill any hope of the victim’s collecting damages, as well as remove the resources necessary to retain counsel and wage the fight for disclosure.

* CAPS. In this scenario, Congress places a limit on the amount of damages. The figure we’re hearing is $25 million. Well, given that the actions of the telecoms could’ve impacted 30 million people, even before legal fees, that would mean less than a dollar per person.

Here’s what we want: FULL PARTY DISCOVERY. Otherwise, Congress should shut up and let the courts do their job.

So, say no to Substitution, Indemnification, and Caps.

Tell your Representative and Senators that you want Full Party Discovery.

The odds aren’t yet in our favor, but if they start to hear from lots of constituents on this, and they get loud “No’s” for the in-between options, we’re likely to defeat immunity once and for all!

Please, take action now. Time is running out. Send a message today.

Jim Babka
President, Inc.

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