October 22, 2007 9:27 AM PDT

NSA cooperation: OK for e-mail, IM companies?

A new Senate bill would protect not only telephone companies from lawsuits claiming illegal cooperation with the National Security Agency. It would retroactively immunize e-mail providers, search engines, Internet service providers and instant-messaging services too.

The broad language appears in new legislation that a Senate committee approved by a 13-to-2 vote on Thursday during a meeting closed to the press and public. It enjoys the support of the panel's Democrats and Republicans.

It goes further in crafting an impenetrable legal shield than similar proposals in the House of Representatives, such as the so-called Restore Act (PDF), which immunizes only "communications service providers." Bowing to pressure from President Bush, House Democrats postponed a vote on the Restore Act last week.

The broader Senate bill (PDF) would sweep in Web sites, e-mail providers and more. "My suspicion is the scope of the immunity provision is the most revealing way to assess the scope of the underlying authority," said Marc Rotenberg, director of the Electronic Privacy Information Center.

The disparity is striking because telecommunications companies--not major providers of Web-based services like Google, Yahoo, AOL and Microsoft--have been frequently named as complicit in illegal NSA surveillance. Yet under the Senate proposal, those companies would become immune from any lawsuits.

"Private companies who received legal assurances from the highest levels of government should not be dragged through the courts for their help with national security," Sen. John Rockefeller (D-W.V.), the Intelligence Committee chairman and the bill's primary Democratic sponsor, said in a statement. "The onus is on the administration, not the companies, to ensure that the request is on strong legal footing, and if it is not, it is the administration that should be held accountable."

A demand for retroactive immunity
After news reports said AT&T and other major telecommunications carriers opened their networks to the NSA after September 11, 2001, dozens of civil lawsuits were filed. A decision on whether the lawsuits will be permitted to proceed is expected from the 9th Circuit Court of Appeals in San Francisco at any time.

President Bush has insisted on retroactive legal immunity, and the Justice Department on Friday gave the Senate bill a preliminary thumbs-up, though it said further changes will likely be necessary before it's satisfied.

"The bill has many good components, and we appreciate the serious work done on this bill in the Senate Intelligence Committee," spokesman Dean Boyd said. "We appreciate that the bill has strong liability provisions."

The Senate bill overrides every other law, including state laws, criminal laws and privacy laws, when saying that lawsuits against companies must be "promptly" dismissed, as long as the attorney general certifies that the cooperation was authorized. The definition covers any company that has "access" to "electronic communications" that are stored or in transit. It would almost certainly pull the plug on the 9th Circuit lawsuits, including the one brought by the Electronic Frontier Foundation last year.

While some information has dribbled out regarding how companies like AT&T allegedly worked hand in hand with the NSA, less is known about how much cooperation might take place with e-mail and instant-messaging providers.

Some companies, including Yahoo and Google, refused to comment in a survey conducted by CNET News.com last year that asked: "Have you turned over information or opened up your networks to the NSA without being compelled by law?" Others, like Comcast and BellSouth, did reply in the negative.

During an appearance before a congressional committee last year about Chinese Internet censorship, Yahoo was pressed by Rep. Brad Sherman, a California Democrat, about whether it would cooperate with the NSA in the absence of legal authorization. Yahoo's general counsel, Michael Callahan, said the company would not provide law enforcement with e-mail without "proper legal process." But when asked whether Yahoo's requirements would be lowered if the NSA requested e-mail, Callahan refused to comment.

Still, there's no evidence that any extralegal cooperation has ever taken place, and some of the same companies have taken very public steps to protect their customers' privacy in the past. Google fought the Justice Department's subpoena for excerpts from its database, and an EarthLink attorney was the first person to publicly disclose the existence of the FBI's Carnivore surveillance system.

The Senate bill's immunization would extend to companies involved with surveillance beyond that requested by the NSA. It says Internet companies cannot be held liable for secretly cooperating with the CIA, the Defense Department, the Office of the Director of National Intelligence, the Defense Intelligence Agency, the State Department, the Treasury Department, Homeland Security and other intelligence-related organizations that may be even more shadowy.

One type of immunization would extend from September 11, 2001, to January 17, 2007, the day the Justice Department announced that the secret NSA program would be revamped and brought under the scrutiny of the Foreign Intelligence Surveillance Court. The other immunization grant would continue into the future.

The next stop for the Senate bill is the Judiciary Committee. It's unclear exactly when that panel will take up the bill, but it's not going to be this week, a Democratic committee aide said Monday. That uncertainty exists largely because members of that panel have requested--but still have not received--sufficient information about how the Bush administration's spying programs worked and what involvement telephone companies had, the aide added.

In addition, Sen. Christopher Dodd (D-Conn.), a 2008 presidential hopeful, has vowed to take a procedural step that would prevent the bill from going to a vote, as long as it cloaks corporations with legal protections.

"I will do everything in my power to stop Congress from shielding this president's agenda of secrecy, deception and blatant unlawfulness," he said in a statement last week. Democratic Sen. Patrick Leahy and Republican Sen. Arlen Specter, the top senators on the Judiciary Committee, both have expressed skepticism about retroactive immunity.

Under existing law, electronic communications providers already are exempted from all liability--as long as the attorney general has delivered a "certification in writing that no warrant or court order is required by law."

Other sections of the Senate bill permit the attorney general and the national-intelligence director to sign off on wiretaps without court approval. They could authorize such snooping for up to a year, provided that the target is "reasonably believed to be outside the United States" and a U.S. person isn't being "intentionally" targeted in the process.

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27 comments

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It started in early 2001, BEFORE SEPT 11
This program can't have anything to do with Sept 11, because it was set up beforehand.

Equipment for this secret government program was put in place in March 2001, accroding to a number of AT&T employees who have given sworn testimony as part of the class action suits against AT&T and Verizon.

In addition, recent court documents filed by the lawyer for former Qwest CEO Joe Nacchio assert that the NSA attempt to strong arm Nacchio into participating in a secret government program that both Nacchio and Qwest's general counsel believed to be illegal under the 1934 Telecommunications Act. When he refused, NSA and other agenencies retaliated by taking away contracts promised to Qwest. That kind of retailiation for refusing to play ball is par for the course for the crooked neocons.

I'm sure immunity will get rammed through as good for America, and things like customer privacy and freedom from unreasonable searches and seizures will be deemed "unAmerican" and "helping the tareists". 'Cause remember, if you don't give up your freedom, the tareists win!!!

When's the next bogus terror threat coming along? Oh yeah -- just as soon as Congress is ready to vote on this sham bill.
Posted by chris_d (195 comments )
Reply Link Flag
First it was habeas corpus , now it's this...
The checks and balances that made this country great are nearly gone. The Judicial system now has too much power, common people no longer have the right to petition a court with Habeas Corpus in a case of unlawful detention, unreasonable search and seisure is in question, and wiretapping is legal by loophole. Pretty soon, everyday people will have recourse before the government at all.

During the cold war, when the world was supposedly in danger every day from "commies" and nuclear war, we had all these rights. Now, we have nearly lost them all.
Posted by mattumanu (599 comments )
Reply Link Flag
Habeas Corpus
Habeas Corpus doesn't apply to foreign terrorists. As far as I can tell, it never did. You are trying to treat these people like criminals. Also, read the Geneva Convention and you'll see that terrorists don't meet the requirements - it's an easy read. Just like we executed several German Saboteurs who came ashore in Florida in 1942, we are in full rights to hold these people in places like Guantanamo.

Your emotional responses that somehow all of our rights are gone is silly. If you would just read a bit, you'll see why. I suspect you have many more delusions involving Bush, Cheney, Rumsefeld, Haliburton, etc. that could be dealt with by using some Socratic thinking.
Posted by Al57 (48 comments )
Link Flag
Constitutional?
How can this law possibly be constitutional? Didn't the companies involved violate constitutional rights by conspiring with the government? At least the first and fourth amendments have certainly been violated, and this would be a great time to drag out the oft-ignored 10th amendment.

Congress can't simply pass a law shielding people from civil rights abuse lawsuits... they'd have to change the constitution, wouldn't they?
Posted by samkass (310 comments )
Reply Link Flag
it's the war on terror stupid...
keep your mouth shut(ahem, be patriotic), don't question anything b/c it's all for your own good, etc. etc.

P.S. our founding fathers are turning over in their graves.

"give me liberty or give me death"
"those who sacrifice freedom for security deserve neither"
"live free or die!" - NH motto
Posted by dondarko (261 comments )
Link Flag
Unconstitutional
There are so many problems with this legislation it is hard to understand why it is even being considered. How can crimes committed be made retroactively legal? How can unwarranted access to all forms of communication be Constitutional when no probable cause is even remotely demonstrated? Aside from the legal concerns there is the matter of practicality. If the NSA is free to data mine all communications how effective can search for a needle in a mountain of needles be? To date anyone that has had experience with covert data collection is usually of the opinion that it is vastly over rated as practical tool. Concentrating on known suspects and their contacts is one thing but what is very different is this proposed vast fishing expedition with no limits. What little conceivable gain that could be expected is far out weighed by the loss of privacy and the violence done to the Constitution. Without even knowing what methods are being used Congress seems willing to approve "a pig in a poke" to quote Republican Arlen Specter.
Anyone voting for this travesty of legislation will have violated their oath to uphold the Constitution and should be subject to recall or impeachment. There are limits to what the government is allowed to do in our representative democracy. This fundamental understanding is what the whole system is built on. Craven politicians are too quick to throw the baby out with the bath water with this disgraceful legislation.
"If you want total security, go to prison. There you're fed, clothed, given medical care and so on. The only thing lacking... is freedom."
- Dwight Eisenhower
Posted by zanzzz (138 comments )
Reply Link Flag
"it's only a piece of paper'
to quote our current president.
Posted by dondarko (261 comments )
Link Flag
It's legal because...
...one of the President's job is to protect the Constitution. In times of war, the Executive Branch has been given much leeway in performing surveillance - especially of foreign communications. It's not much more complicated than that - and it shouldn't be.

After 9/11, the Democrats complained that Bush didn't "connect the dots". These are the things that the Executive Branch has to to in order to connect the dots and stop attacks. It should be obvious. If something happens and we find out that the government didn't do their job, then people are going to be pissed.

I understand that there should be limits, but it sounds like the liberals want to draw the line such that 1) we'll be unable to stop some attacks and 2) our enemies will have a clear path to know where to exploit the system. In regards to anti-terrorist operations, we are no where near the point where people are worried about being surveilled. I would be much more worried about the attacks on Free Speech in universities than this stuff.
Posted by Al57 (48 comments )
Link Flag
There needs to be someone to stop Bush and his administration
First off, someone rigged two elections for him to win. That's right I said both of them were rigged. We all know about the 2000 election, which I'm sure we all saw as a horrific conflict of interest with Bush's brother being the governor of the state that was having all sorts of problems counting the ballets. With the 2004 election, in Ohio there were people still casting ballets long after the polls were suppose to close. Like until 2 or 3 AM eastern time. I remember because I didn't sleep much in college and remember watching a news program and telling the night secrity guard that this isn't suppose to happen.

And know he's taking away everyone's rights in an "attempt" to "protect" us, when there has been how many other terrist plots against the nation where other presidents solved without taking away one of our rights. If he can't do it, then he should resign and we can get someone in office who can and will serve the nation. There is something bigger than this "War on Terror," and we need to stop it before it's too late.
Posted by aka_tripleB (2211 comments )
Reply Link Flag
people wake up when it's too late
sadly
Posted by dondarko (261 comments )
Link Flag
Read the story, you might learn something
Here is a quote from the main story:
"The broad language appears in new legislation that a Senate committee approved by a 13-to-2 vote on Thursday during a meeting closed to the press and public. It enjoys the support of the panel's Democrats and Republicans."

Your email should read tripleBS
Posted by apptec (15 comments )
Link Flag
SOMEONE TO STOP BUSH
STOPPING BUSH IS NOT THE PROBLEM, HE IS JUST ONE MAN THE PEOPLE TO STOP ARE THE CFR, TC GLOBAL ELITE,THESE ARE THE DRIVING FORCE BEHIND BUSH'S ADMINISTRATION,AN ALSO CLINTON'S. WHY DO YOU THINK HILLARY IS THE TOP CANDIDATE IN THE NATIONAL POLLS, THIS IS ALL MASS MEDIA DECEPTION, CONTROLLED BY THE CFR, TC GLOBALISTS THAT OWN THE MEDIA. AND BY CONTROL OF THE MEDIA THEY HAVE BE ABLE TO TAKE OVER OR GOVERNMENT, BY MISINFORMATION
AND THE BIGGEST COVERT OP. IN THE HISTORY OF THE WORLD. ALL I CAN SAY IS THESE GLOBAL ELITE HAVE PUT THEM SELFS ABOVE HUMANITY IN THEIR QUEST TO HAVE A ONE WORLD GOVERNMENT, THEY WILL BE JUDGED BY THEIR CREATOR GOD ALMIGHTY. AND ALL THAT MONEY THEY HAVE AMASSED WILL BURN WITH THEM IN HELL.
Posted by RAS1142 (2 comments )
Link Flag
We're all neocons now
Remember, this is a bill supported by both Democrats and Republicans. Anyone who thought they were voting for change by handing Congress to the Democrats in 2006 is a sucker.
Posted by solrosenberg (124 comments )
Reply Link Flag
Completely agreed
I've been telling people this for the last few years: first, the Democrats have been weak in not being able to stem the tide of Republican power. Not only have they lacked a compelling enough message or candidates to win as much as they should, but they give in to political games when in office and don't stand their ground on important issues. Second, even when the Democrats do get their way, it turns out not to be much different from the Republicans anyway - policy still dictated by corporate lobbyists and campaign donations, government power and secrecy elevated above citizens' civil rights, international meddling by intelligence and military organizations, fear tactics and misinformation used to manipulate the population, etc.

Votes for the Greens and other alternatives are NOT why Democrats failed to win the White House, but more importantly, voters FAILING to support these alternative parties is a real contributor to us being in our current mess. People need to vote their conscience, not play games with voting for the slightly-less-bad "choice" among the two most-popular candidates.

You're right: we can't blame it all on the neocon Republicans inhabiting the White House. We have our own lazy, stupid, ignorant, selfish ***** to blame as well.
Posted by fredmenace (159 comments )
Link Flag
welcome to the police state
and corporate governance(ahem... "Fascism should more appropriately be called corporatism because it is a merger of state and corporate power." Benito Mussolini)

think
don't be spoonfed
don't be braindead
<a class="jive-link-external" href="http://www.oldamericancentury.org/14pts.htm" target="_newWindow">http://www.oldamericancentury.org/14pts.htm</a>
Posted by dondarko (261 comments )
Reply Link Flag
To quote thomas jefferson
"I hope we shall crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and bid defiance of the laws of our country."
Posted by dondarko (261 comments )
Reply Link Flag
220 YEARS AND SILL RELENT
THOMAS JEFFERSON NEW THE DANGER CORPORATISM,AND THE GLOBAL ELITE WITH THEIR MASS MEDIA DECEPTION,HAVE DONE WHAT WE WERE WARNED ABOUT. AND NOW THAT THE AMERICAN PEOPLE ARE WAKING UP FROM THIS DECEPTION.I THINK ITS GOING TO TAKE A GRASSROOTS MOVEMENT ACROSS AMERICA SATE BY STATE, AND START WITH LOCAL GOVERNMENT TO STOP THESE CFR, TC GLOBALISTS, FROM FULFILLING THEIR AGENDA, FOR THE NORTH AMERICAN UNION, AND TO DELETE OUR CONSTITUTION. WE THE PEOPLE ARE STILL RELENT.
Posted by RAS1142 (2 comments )
Link Flag
We're not a police state....
You guys ought to go to some other countries and look at the lack of freedoms for everyday people.

And they're not right-wing countries, it's the left wingers that are oppressive. Castro, Chavez, the old Soviets, etc.

People flock to the US and try to get away from leftist, liberal countries.
Posted by Al57 (48 comments )
Reply Link Flag
try doing things out of the ordinary
that is all it takes to attract the attention of our government and possibly put you on a terrorist list.

In fact do these things:

1. check out a book on bombs
2. say random destructive words into your cell/ land-line phone
3. make a name for yourself on the internet as a radical/conspiracy theorist

These things are sure to get you on that list.
Posted by Fremia (21 comments )
Link Flag
Somewhat true, but...
Just because we are still better than some other countries, is that a reason to be moving backward? Is this what we should be proud of, that "we're not as bad as North Korea or Cuba or the old Soviet Union...yet"?

The problem is that most people perceive that we have appearant freedom, but behind the scenes, that is being eroded.

The quality of information that most people receive is now very bad, so we don't have an informed populace. (Most people aren't smart or industrious enough to do their own research or analysis, instead relying on what they are told by major media outlets and official government proclamations.) It's not just Fox news, it's all the cable channels, all the network news, all the nightly news, the main new websites, nearly all major newspapers: we're routinely being misinformed and important stories are being downplayed, if they're reported on at all. Replacing that is a blend of misinformation and sensationalism meant to distract, outrage (usually over trivial things, like "wardrobe malfunctions", so we don't get outraged over truly important things) and manipulate.

Second, many rights we've taken for granted have been chipped away at, either through public perception campaigns intended to make people think we never had these rights in the first place (the RIAA/MPAA campaigns for their massive distortion of copyright is one example, as is the perception that terroristic threats justify various surveillance or security measures, the perception that corporations should have rights equal or superior to those of people, that investment income should be taxed less heavily than earned income, etc.), or else through covert programs where laws intended to stop precisely this kind of abuse can be flaunted, without anyone knowing about it.

The problem is not so much that we are an active police state right now, but rather that we are putting in place the legal and cultural prerequsites and building the infrastructure for a police state to come. So much so, that the transition to a true police state could possibly come with startling suddenness, when it is too late to easily do anything about it. The biggest problem is that everyone will be left scratching their heads, thinking "but I thought we were a free, democratic, peace-loving country, how and when did it all change?" The answer is that it has all ALREADY changed, but the "new and improved" America hasn't been formally unveiled - it's still in beta testing.
Posted by fredmenace (159 comments )
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