Sen. Chris Dodd’s threatened old school filibuster forced Sen. Harry Reid to delay consideration of the Senate FISA-amending bill containing telecom immunity, so we are cheated of Sens. Dodd and Russ Feingold filling C-SPAN 2 with their dramatic readings of Ellers McEllerson’s How Would An Expatriate Overreact? until January 2008.
For some reason, the left side of the blogosphere is delighted with this turn of events, with Crooks & Liars hooting in delight and Jane Hamster congratulating Sen. Dodd.
Apparently, it has not occurred to these brilliant political tacticians that Sen. Reid’s cave-in was due less to the whining of Kos and Ellers than it was the political necessity of passing various bills before leaving DC for the holidays — including funding the troops in Iraq to the tune of $70 billion or so.
Given the filibuster-proof margin for the FISA bill, the nutroots have expedited funding the mission they despise in return for meaningless yammering in the new year.
How long until they blame this on Karl Rove?
Where’s Browning when you need him?
The best estimates say the universe will last at least another 20 to 30 billion years.
It is a huge symbolic victory Karl. Appearances are everything to that bunch.
Well, the way things are going with the netroots today, they will blame Reid and the Senate Dems for betraying the cause of … uh, whatever it is they call their movement today… after the bill is passed with the immunity intact.
Then they will go back to rooting wholeheartedly for the Dems.
It’s what they do.
After so many years of watching and listening to the nutroots, I am still flabbergasted by their antics.
Do they HONESTLY think that we are the only country on Earth with a dead serious political agenda? Russia? China? North Korea? Iran? Al Qeda? Just be nice and they will leave us alone?
Keerist!!! “Unmatched stupidity” seems to be their motto.
Apparently they have bought into “flower power”, only on a much more deadly scale. “Just be nice, and they will back down and realize just how “cool” we really are! Then we can all play patty cakes!”. It is absolute insanity! I can’t quite get my mind around how so many grown up people could still be so emotionally and uncomprehendingly stuck in the eighth grade.
It really is getting scary out here…
“It is a huge symbolic victory Karl. Appearances are everything to that bunch.”
Procedure was used to gain another chance. Not the first time this has happened with FISA. Any edge counts. Now to target and see if they can get the Judiciary version of the bill introduced, and its off to bush to veto the supposdely needed FISA reforms.
I doubt reid will get it though.
Procedure was used to gain another chance to grandstand and demogogue.
Fixed that for you.
Thanks Karl. Someone had to point it out.
Nice to see some of you children take the Constitution so seriously. Perhaps in 6th grade your teacher will introduce you to its basic elements and historic antecedents, such as the 4th amendment.
Hey, it’s people powered power of the people, people! You know, like Soylent Green–people powering people.
Take you hat off, Doug, I can’t see your point.
Oh, the 4th amendment.
Why hasn’t anyone mentioned that before?
Of course, in this particular kerfuffle, I would be glad to be enlightened as to how telecom immunity relates to the 4th amendment, given that the telcos are not government actors.
I’ve never understood the FISA controversy. In domestic wiretaps, police get a warrant to wiretap Mr. X. Then Mr. X calls Mr. Y. Police are not required to get a warrant for Mr. Y.
So, if the intelligence services have legal authority to monitor calls of foreign persons suspected of terrorist activity (Mr, X), why in the hell does the government need another authority to monitor the person receiving the communication (Mr. Y).
If the normal domestic warrant provisions satisfy liberals, so should the practices of the intelligence agencies. From a logical point of view, the two acts are perfectly analogous.
Jeff,
One of the primary reason the issue is difficult is that the technical details of the program are not fully known.
The problem is less with the 4th amendment than it is with FISA, which some interpret as requiring a “FISA warrant” any time a “US person” is a party to the communication.
But your point about that position lacking logic is well-taken.
I’m confused. I was considering calling the McDonald’s in Rawalpindi (ninth paragraph, yo) to check and see if they are participating.
The McRib is available for a limited time at participating McDonald’s. And fuck all if the McRib isn’t the best sambwich ever Allah ever created in less than a 120 seconds. Hungry, impoverished children with extended bellies and smudged faces shouldn’t be disallowed the one greatest pleasure of evil America – the fuckin’ McRib!
What if I place that call, and what if I do wish dysentery and incurable nausea on the manager if, in fact, Rawalpindi’s McDonald’s isn’t participating? Will I be monitored? Watched? Waterboarded?
Help me to understand.
“Of course, in this particular kerfuffle, I would be glad to be enlightened as to how telecom immunity relates to the 4th amendment, given that the telcos are not government actors.”
Telecomm immunity is how you avoid the 4th amendment, because telcos aren’t government actors.
“One of the primary reason the issue is difficult is that the technical details of the program are not fully known.”
And thats one of the places telecomm immunity comes in. Because it provides a slight bit of oversight.
“The problem is less with the 4th amendment than it is with FISA, which some interpret as requiring a “FISA warrant†any time a “US person†is a party to the communication.”
You mean, some people think it DOES say this, or some people think FISA ought to say this?
So Dodd is pushing that all time favorite of the reactionary democrats, the “Lawyer Protection Bill”.
FISA reform bill angers the far left – Chris Dodd vows to filibuster (TUE AM UPDATE)
The NYT reports that telecoms won a small victory today in the Senate regarding the FISA reform bill:
WASHINGTON  Telecommunications companies won a skirmish in the Senate on Monday as a bill to protect them from lawsuits for cooperating with the Bu…
andy – Is it too much to ask for you to make an actual and coherent point from time to time?
I just feel sorry for Dodd. The left is hailing him and saying he should be majority leader, when what he really wants is their support to be President.
Wasn’t Sen. Dodd the one that so eloquently declared that Sen. Byrd (KKK-Dem) was the right man at any time in our history?
JD – andy/actus/talking telephone pole will never make a statement, never make a stand. Ever.
“#Comment by andy on 12/18 @ 7:18 am #
“So Dodd is pushing that all time favorite of the reactionary democrats, the “Lawyer Protection Billâ€Â.â€Â
ECPA and the stored communication act dont protect just lawyers….”
Dodd’s bill is a lawyers wet dream, because it’d open a whole new industry to destruction via lawsuits.
What’s the matter with you, do you hate America THAT much?
N.O’Brain – Nationwide, the Dems are trying to do that. Just look at the 3rd party “bad faith” laws in states like Washington that the Dems passed for their friends at the plaintiff par. Look at the states where the Dems are broadening the legal definition of wrongful death. They are more beholden to their interest groups than the Republicans, but they are never called on it. Once, I would love to see a news article where it talks about Dems pushing bills for the trial lawyers.
Again, for the slow:
The 4th amendment protects people from unreasonable searches and seizures by the government.
AT&T, et al. are not the government.
The ACLU may try to claim they are the government, but if they do, I doubt any chance of success. The telcos want immunity primarily for other claims of invasion of privacy. Whatever the merits of those claims, they are not 4th amendment claims.
9/12/2001
*Ring, Ring*
Telecom exec: Hello
Gov’t agent: I need your help.
Telecom exec: What do you have in mind?
Gov’t agent: Here’s the plan…
Telecom exec: What if I’m sued by my customers who claim I may have violated their privacy?
Gov’t agent: Come on, look at what just happened. Everybody will understand that you were acting in the best interests of the country in trying to stop terrorist attacks and save lives. How would you feel if another attack occurred and it was discovered that you could have helped us prevent it but you didn’t out of “liability” concerns. Besides, we got your back.
Telecom exec: You’re right. I’m in.
Years later, after the next terrorist attack,
*Ring, Ring*
Telecom exec: Hello
Gov’t agent: I need your help.
*Click*
Gov’t agent: Hello. Hello?
Karl,
Bzzt! Wrong!
I love you like a brother, but the problem is that the technical details are irrelevant; they are being used as a red herring. The designers and builders of the network go to great lengths to make technical details as irrelevant as possible. They use the concept of “the cloud”: here’s the gozinta, here’s the gozouta, and as long as what gozinta the system gozouta the right place the details of what happens inside the cloud are of interest only to people with beards, shapeless sweaters, and jewelry consisting primarily of gray or matte black plastic bits with silicon chips inside. They will tell you solemnly that the fact that this frustrates the Hell out of the bean-counters at Deutsche Post is only a beneficial side effect :-)
Only the termini matter; anything else is misdirection or an attempt at empire-building, or both. Trying to explain the difference between a bang path and a rip (RPP, Requested Routing Packet) to people who haven’t figured out how to do call forwarding on their GSM phones without an aide doing the programming is a lost cause — and that’s precisely what the designers intended.
The Pelosi/Reid axis has only one aim: Frustrate George Bush. The details of what they grab onto as the latest attempt to accomplish that are of as little interest to them as the details of the Net are when we post. The result is that they are continually overreaching and getting their hands burned. Long may it wave.
Regards,
Ric
“US personâ€Â
This has actual legal meaning. An illegal alien, for instance, is NOT a US person. Has anyone shown that a US Person has in fact been on the US-based end of the call.
Ric,
You know I like you also, but you are focused on the “cloud” without recognizing that what I’m talking about is how lawyers, judges, etc. view that cloud. And to the extent that they don’t understand it, we’re in trouble (and I mean that in the sense of an increased chance of a wrong decision). This is one reason the FISA bill is going through; the possibility (or reality) that some FISA judge rules that a call with two foreign terminals nevertheless requires a warrant because some packet passes through the US. Plus, I would not so cavalierly dismiss the notion that certain aspects of what is actually done remain classified and not leaked.
eLarson,
The answer to your question is “no,” afaik. Indeed, the 6th Circuit rejected an attack on the TSP by the ACLU, Hitchens and others precisely because they could not show they had been affected by it.
I just feel sorry for Dodd. The left is hailing him and saying he should be majority leader, when what he really wants is their support to be President.
Always a bridesmaid, never a bride…as the saying goes.
The way this went down, with Reid punting for a bit, didn’t come off much like Kucinich’s Cheney impeachment fiasco? Like it wasn’t just a concession to Dodd but rather Reid spared the Democrats the embarrassment of voting on record agianst their nutroots?
And yet, if so, shockingly, the nutroots didn’t get it. Blinded by their principles, they are.
Somebody save the Dems from themselves !!!
#5 The Lost Dog
Do they HONESTLY think that we are the only country on Earth with a dead serious political agenda? Russia? China? North Korea? Iran? Al Qeda? Just be nice and they will leave us alone?
Keerist!!! “Unmatched stupidity†seems to be their motto.
I prefer the term “invincible ignorance”. ;^)
Karl,
Yes, I understood that. My point is that the chance of a wrong decision is unity minus epsilon and that is deliberate — the geeks and nerds who build and run the net do not employ a Speaker to
AnimalsPoliticians; I’m not sure one is possible, because the languages have so few points of similarity. The very few cynics who do understand that any given phone call (even domestic) may involve packets switched through New York, Limerick, Lausanne, Tuvalu, and Abu Dhabi are deliberately using that knowledge to muddy the waters rather than provide clarification. They don’t want clarification, because their goal isn’t Justice, Free Speech, or anything resembling those; their goal is to inject themselves into the process and profit thereby, either politically or in cash.I don’t know what the solution is. There probably isn’t one. I can reliably predict, though, that neither justice nor the needs of the American people (or any other) will be served by the result.
Regards,
Ric
Ric,
We’re generally in agreement, except that I would suggest that some want to focus on those packet details to gin up a legal issue that FISA’s drafters likely never intended.
Also, to clarify some of my earlier responses, we should recall that the TSP contoversy encompasses not only the interception of the content of calls, but also the USG’s desire for aggregate call-record data (presumably for data-mining applications). Those two types of data raise different legal issues. Indeed, I suspect — though I have not researched it — that the telco immunity kerfuffle likely involves the aggregate data more than the eavesdropping claims.
PS: Though some lawyers may be deliberately advancing an agenda based on the packet issue, I would hesitate to reflexively attribute that degree of intention to judges, who often lack the degree of technical background I have (let alone Ric’s level), and occasionally are of an age that they resist getting that background. And some lawyers will exploit that also.
Karl – you nailed it…Via WAPHO
and
Oh, and that last quote by Schumer really demonstrates this whole “outrage” at “retroactive immunity” is all a charade as usual. See, the nutroots – or lat least the Congressional left – don’t really care about all this other than it allows for the left to get on their Bush hate.
topsecret,
my friend, you are mistaken. The White House, as shown by the fact that Messrs. Rove, Miers, et. al. have yet to answer a Congressional subpoena to answer questions about their role in the firing of US attys, has sort of shown they will not cooperate. That is why the Lefties are going after the phone companies, i.e. they’re the only party who can’t behind the “State Secret” defense (although, the govt made that amicus argument in its brief to dismiss).
As for Karl, he apparently missed the fact that FORTY, count ’em 40, class actions suits have been consolidated into one suit in California and moved past the summary judgment phase (last year, mind you, which explains why telecom lobbyists have been trying to buy immunity in Congress.
This is from the Chicago Tribune: “That suit received a boost last year when a federal judge in San Francisco refused to dismiss the case, holding that ‘AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.'”
The 4th Amendment issue is moot, since the government won’t answer the question.
As for the foreigners versus Americans debate; whistle blower Mark Klein has plenty of documents (available here at http://www-tc.pbs.org/wgbh/pages/frontline/homefront/etc/kleindoc.pdf)
which show that AT&T, at least, did not care on whit about the difference. They let the NSA tap everyone.
Which, as we know, for us small-government types, is cool. The government can do anything it wants, as long it doesn’t tax us.
But, Karl’s right. It was a Phyrric victory for the Left. Sometime in January the telecoms will buy their immunity. Victory will be sweet.
todd,
Actually, I didn’t miss anything about the class action litigation. It simply wasn’t relevant to the initial post and only tangential to my comments upthread.
You concede that the 4th amendment is at least moot, though I would again suggest that the telcos were not state actors — which would be one reason not to apply the state secrets privilege to them.
Former AT&T technician Mark Klein is not a lawyer. However, under the plain text of FISA’s definition of “electronic surveillance,†the contents of the communication must be “acquired by intentionally targeting that United States person.” An indiscriminate dragnet would thus seem to fall outside the FISA restrictions.
Plus, you agree with the conclusion of the post. Nevertheless, the fact that I am correct about the likely conclusion of this little drama irked you enough to vent a bit, so I feel like my purpose is accomplished.
So Todd confirms what was said above — they have no motives in this matter grounded in justice, equity, or the good of the Republic; their only goal is to harm George Bush, and faced with their impotence in that respect they settle for harming those who (in their view) had an opportunity to harm George Bush and didn’t take it. It is the ethics of the street tough: faced with an opponent too strong to intimidate, resort to raping his daughters to “bring him in line”.
Suggestion for you, todd: Shoot George Bush’s dog. You might make him cry, and the bobbing and weaving of PETA as they attempt to reconcile their cheers with their stated mission will give us all a great deal of entertainment.
Regards,
Ric
todd has no idea how he is the embodiment of the Leftist that dislikes President Bush, and will utilize any vehicle to demonstrate that. The privacy issues on this are interesting. Does one have a reasonable privacy assumption when one cedes control of the records to a 3rd party, assuming there is no privilege?
civil class action suit. How elegant in its exemplifying what the Dems stand for. Instead of being honest about security issues, they would prefer to see plaintiff lawyers make money on behalf of people that show no demonstrable harm or injury, but are afraid that they might have been harmed. That it proceeds forward in the 9th Circuit should surprise nobody.
“Comment by toddbenzinger on 12/18 @ 4:45 pm #
topsecret,
my friend, you are mistaken. The White House, as shown by the fact that Messrs. Rove, Miers, et. al. have yet to answer a Congressional subpoena to answer questions about their role in the firing of US attys, has sort of shown they will not cooperate.”
Once again, a leftie who has no concept of reality. These people have no reason to answer any subpeona about the firings, because it is NOT Congresses business in any way.
These US attorneys serve at the pleasure of the president, and can be fired for ANY reason the presidents sees fit.
How upset were you when Clinton fired ALL US attorneys so that he could get rid of ONE of them? His subterfuge was executed in a much subtler manner than Bush’s, but it amounts to the same thing.
If I were president, and any US attorney refused to prosecute on political grounds – See Ya! Wouldn’t want to be ya!
And that’s what this is really all about. Democrats being pissed off because their US attorney allies were caught with their pants down, refusing to prosecute Democratic election fraud..
Congress has absolutely NOTHING (constitutionally) to say about Bush’s actions.
But of course, the Dems depend on people like you who have no clue what the Constitution really says. Go, baby!
“Dodd’s bill is a lawyers wet dream, because it’d open a whole new industry to destruction via lawsuits.”
What does it open? Telecom liability is already part of the law.
“You concede that the 4th amendment is at least moot, though I would again suggest that the telcos were not state actors  which would be one reason not to apply the state secrets privilege to them.”
I think state secrets privilege, a court created doctrine, stops private sector suits too. Given that other requirements are met.
“Does one have a reasonable privacy assumption when one cedes control of the records to a 3rd party, assuming there is no privilege?”
Katz vs. US recognized a reasonable expectation of privacy in the contents of your phone calls. As to other information, ECPA, the stored communications act, and the Telecoms act create statutory privacy. in the traditional fourth amendment sense? no you don’t have an expectation of privacy in what you hand over to a third party. Check Smith vs. MD.
“Instead of being honest about security issues, they would prefer to see plaintiff lawyers make money on behalf of people that show no demonstrable harm or injury, but are afraid that they might have been harmed.”
First we gotta find out the extent of the harms.
The Lost Dog – You hit the nail right on the head. The US attorney kerfluffle is a shining example of why people in congress should be forced to pass an intro to civics class before they are sworn in.
andy – Let’s assume, arguendo, that one of your phone calls was one that was “wiretapped”, a call from overseas. What is your expectation of privacy? Why could we strip search someone at the border, or in customs, but not listen to a phone call? Again, a call being made to you, how were you harmed?
“andy – Let’s assume, arguendo, that one of your phone calls was one that was “wiretappedâ€Â, a call from overseas. What is your expectation of privacy?”
A call from overseas? Border search cases would say there is no fourth amendment expectation of privacy there. There is the possibility that this surveillance captured than just cross border calls. Also the lawsuits against the telcos aren’t just under the fourth amendment. They also deal with statutes.
See complaint here:
http://www.eff.org/files/filenode/att/att-complaint.pdf
One of which is that the privilege must be asserted by the government. See, e.g., Fitzgerald v. Penthouse Int’l Ltd., 776 F.2d 1236 (4th Cir. 1985).
“One of which is that the privilege must be asserted by the government”
So it steps in to the private suit. Like it did in the Hepting vs. AT&T, a suit not involving the government.
BTW one question can definitely be answered:
So:
16:45+24:00-21:10=19H 35M. Not terrible turnaround, I think.
Regards,
Ric
Indeed. The point being that the telcos could not invoke it because they are not in the shoes of the gov’t — hence not state actors — hence no 4th amendment problem. The telcos’ real problem are the statutory claims you noted above.
Though it likely will not be a problem in about a month or so.
“The point being that the telcos could not invoke it because they are not in the shoes of the gov’t  hence not state actors  hence no 4th amendment problem.”
There’s a fourth amendment problem when a private entity acts as an agent of the government. You still sue the private entity, not the government though.
“The telcos’ real problem are the statutory cllaims you noted above.”
Which I believe the government also attempted to toss with state secrets privilege.
So andy … you never answered. Assuming you were in the group that MAY have been effectedm what injury did you incur? How were you harmed? How will suing someone make you whole?
andy,
Try to be more circular. If the issue is whether the telcos were acting as agents of the government, you cannot start with the assumption that they were agents of the government, particularly when the law tends to presume the opposite.
The fact that the telcos cannot invoke the state secrets privilege themselves is one indicia that they are not standing in the shoes of the government, which is what is generally required to hold a corporation to be a state actor for the purpose of constitutional claims.
That the US stepped in to assert the privilege — even as regards the statutory claims — means only that they sought to protect the underlying info on behalf of the US, not that the telcos thus must be agents of the government.
“Assuming you were in the group that MAY have been effectedm what injury did you incur? How were you harmed?”
I believe the various statutes provide for statutory damages. Those are in the complaint. I placed the link above. You seem to think there is no monetary harm. If that’s the case, then there is no need for immunity, because the telecoms owe nothing. I think you can figure out that you are wrong.
No andy, you intentionally miss the point. I ask again, assuming you are in the group that MAY have been effected, how would you, as an individual, have been harmed or injured?
Karl – They enjoy their circular arguments. They can claim to be right by pointing back to their original assertions. Nifty, that.
“I prefer the term “invincible ignorance”
Like the guy in “die Hard” who thought he was being cool by pretending that he was “cool” and telling what’s-his-name (Bruce Willis) that everything would be cool if (Willis) would only give himself up.
The grand prize? A bullet in the head.
Oh? That only happens in the movies? OK. No problem…
For some reason, I thought that murderous savages actually existed. Silly me! They only exist in my mind!
“The fact that the telcos cannot invoke the state secrets privilege themselves is one indicia that they are not standing in the shoes of the government, which is what is generally required to hold a corporation to be a state actor for the purpose of constitutional claims.”
I’m not so sure. You said only the government can invoke state secrets. The claim in the complaint is that they were agents of the government at the time of the violation. I don’t think they can act as agents of the government in court, and invoke privileges that only the government can.
“That the US stepped in to assert the privilege  even as regards the statutory claims  means only that they sought to protect the underlying info on behalf of the US, not that the telcos thus must be agents of the government.”
Oh no. I don’t use the US stepping in to show that the telcos were agents. I just use that to say that state secrets applies to purely private vs. private claims.
“I ask again, assuming you are in the group that MAY have been effected, how would you, as an individual, have been harmed or injured?”
By violations of the statutory rights we have. The complaint lists those. Thats the harm. They’re also claiming fourth amendment violations. I don’t know how courts value improper searches and seizures, but I dont think they look to just a pecuniary loss from the improper search. However, thats not really an issue here, because they don’t ask for monetary damages from the alleged fourth amendment violations. Just declaratory judgment.
See pages 25 and 26 of the complaint for the damages:
http://www.eff.org/files/filenode/att/att-complaint.pdf
The complaints even lists harms from unfair and deceptive trade practices.
Comment by andy on 12/18 @ 9:33 pm #
“One of which is that the privilege must be asserted by the governmentâ€Â
“So it steps in to the private suit. Like it did in the Hepting vs. AT&T, a suit not involving the government.”
Andy, you are endlessly amusing.
I think you should try to understand just how the NSA program works. They do NOT listen to conversations, but rather, run a program that sorts and points to suspiciuos “histories”.
I don’t think that anyone is in danger of having their calls to their mommy monitored. IT IS ABSOLUTELY IMPOSSIBLE TO MONITOR EVERY PHONE CALL MADE IN (OR TO) THE USA!
The NSA program looks for PATTERNS, not conversations.
Awww, Fuck it. Why do I waste bandwidth on someone with the intelligence of my lawn tractor?
“I think you should try to understand just how the NSA program works. ”
I would love to! Thats one of the goals of the lawsuits.
“The NSA program looks for PATTERNS, not conversations.”
Thats interesting. How did you find this out?
Read Brentwood Acad. v. TN Sec. School Ath. Assn., 531 U.S. 288 (2001), Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974) and Evans v. Newton, 382 U.S. 296 (1966), if you want background on the state actor issue.
When you write:
…you are making my point.
Let’s be clear about this. I only mentioned the privilege in response to todd, who wrote:
He later invoked the 4th amendment.
My response was that “the telcos were not state actors  which would be one reason not to apply the state secrets privilege to them.”
The state secrets privilege can only be invoked by the government. It is the government’s privilege, which is why I responded as I did to todd.
The privilege may — if invoked by the government – effectively defeat a claim against a private party. But that fact only proves the weakness of todd’s original assertions.
Indeed, todd wanted to lecture me about litigation in which the state secrets argument has been rejected (so far). Which means that — unless reversed on appeal — neither the telcos nor the NSA can “hide” behind it, and his suggestion that
fails on its face.
“Read Brentwood Acad. v. TN Sec. School Ath. Assn., 531 U.S. 288 (2001), Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974) and Evans v. Newton, 382 U.S. 296 (1966), if you want background on the state actor issue.”
I think the complaint doesn’t go to this sort of state action. Rather they use the agent or instrumentality analysis like this:
“Federal and state courts have applied the two-part test adopted in Waltherv. United States , 652 F.2d 788, 791-92 (9th Cir. 1981), for determiningwhether either private actors or non-law enforcement government actorshave engaged in state action subject to the Fourth Amendment. “[T]wo ofthe critical factors in the [ Walther ] ‘instrument or agent’ analysisare: (1) the government’s knowledge and acquiescence, and (2) the intentof the party performing the search.” Id. at 792; see Statev. Watts , 750 P.2d 1219, 1220-21 (Utah 1988) (adopting two-part Walther test to determine “if a private person or body has conducted a search asa government agent”).”
Thats what it sounds like from the allegations they set out in their complaint. I think that meeting those two factors doesn’t have much to do with being someone who can assert state secrets. So you talk about ‘indicia’ that are ‘generally required.’ But the complaint and I are talking about specific factors.
“That is why the Lefties are going after the phone companies, i.e. they’re the only party who can’t behind the “State Secret†defense”
Thats not quite right. The private claims can hide behind state secrets. Its just that its the government that invokes it, as you noted.
However, one can be an agent of the state for fourth amendment purposes at one time and not be able to invoke state secrets secrets.
“not be able to invoke state secrets secrets.”
I mean, state secrets privilege
At least andy was honest. To them, this is all about getting classified programs aired in public. Somehow their right to know is more important than the government’s duty to defend, especially in a time of war. Glorious in their fuckheadedness.
“Somehow their right to know is more important than the government’s duty to defend, especially in a time of war”
Its the government that made the rules that are allegedly being broken here. And, lets not forget, the government is not being sued. So its duty doesn’t really matter.
Back to the univerisiality of availbilty of the McRib and whether one can demand the Taliban avail their driv-thru of Amercana pork nirvana, can I call Pakistan or not?
JD –
As far as civics goes, I don’t believe that Harry Reid has any lack of understanding about this US attorney “kerfuffle”.
I think that he, and his slimy allies, know EXACTLY what they are doing. They are playing to ignorance, as the left always does (see Global Warming).
Reid is a slimeball (Pelosi, I’m not so sure. She seems stupid enough NOT to know what the Constitution says). Reid knows full well what he is doing.
And that’s why, even though I am in a – shall we say “rough period”? – I am sending money to the Nevada Republican party. Reid is very vulnerable in his next election.
It all depends on ‘Vegas, unfortunately. The morons there are really the electorate in Nevada. And guess how they vote?
But I am hoping that even the lefties will be able to see the snake oil drpping off of Reid’s visage.
‘Nuff said.
“Comment by andy on 12/18 @ 11:30 pm #
“I think you should try to understand just how the NSA program works. â€Â
I would love to! Thats one of the goals of the lawsuits.
“The NSA program looks for PATTERNS, not conversations.â€Â
Thats interesting. How did you find this out?”
Well, gee, andy, I looked for it on the internet. Something you obviously haven’t done.
If possible, use your head here. There are probably close to a billion phone calls a day – and that’s just domestically. Okay. Stay with me here, unless your mind has already blown a fused (which sometimes seems like the only explanation for your posts), how many people would it take to listen to every conversation every day?
20 million? 30 million?
Data mining is NOT wire tapping by any stretch of the imagination. Except for maybe yours, and the other flakes who worry so much about their privacy. Data mining looks for indicators, not conversations.
In a world of peace, you would have two strong legs to stand on, but, as a matter of fact, there are people who want to destroy us by any means possible.
The fact that you don’t give a shit speaks volumes about your maturity.
Well, I hate to over expose myself, but, andy, I have one more thing to say.
If you wish to put a gun to your head and pull the trigger, that’s OK with me.
But where do you think you get the right to put that same gun to other people’s heads?
Abstracts mean nothing in the face of reality.
Do you, by any chance, remember a small little occurence called “9/11”?
That was just a small sample of what we can expect if idiots like you get their way. We are at WAR, your denials not withstanding. Anyone with eyes and half a brain knows this. You need to check your fuse box. I think you need to call an electrician to fix the wiring.
Without the NSA program, we would be toast by now. No matter what you idiots say.
“Well, gee, andy, I looked for it on the internet.”
I think its pretty cool that the Internet has the auhoritative answer on classified programs at the NSA. I’d rather go to other sources though.
“Data mining looks for indicators, not conversations.”
Does it ever occur to you that there is more to the NSA than data mining? Even if they were just accessing costumer records — call patterns — the law puts limits on the disclosure of those too.
“Do you, by any chance, remember a small little occurence called “9/11″?”
I now know, thanks to the Internets, that the NSA was data mining and accessing telecom switches before 9/11
Forgot the link for that last one:
http://www.nytimes.com/2007/12/16/washington/16nsa.html
“I think you should try to understand just how the NSA program works. â€Â
I would love to! Thats one of the goals of the lawsuits.
Why should the NSA divulge the workings of national security programs just to assuage someone’s perception that they MAY have been wiretapped?
Bye, actus! Have fun!
But, really, andy, who the fuck cares?
Dialing a telephone number — or entering an email address into the “To” header — is the equivalent of writing an address on an envelope. What expectation of privacy is there with the address on the outside of an envelope?
Absolutely none. It has to be read by people other than the recipient in order for the system to function. If the handlers decide to record the destination and return addresses for their own purposes, what’s the harm?
Good point Rob, if these activists really want to advocate on my behalf, how about picketing the tele-marketers that profit from the sale of this kind of information instead of harassing people trying to save my ass?
Well. BMoe, the answer should be obvious.
Despite the fact the program is specifically targeted towards foreign calls made to domestic numbers from suspected terror sources and the programs’s only effectiveness is proportional to its ability to do this secretly, people like andy/actus like to preen and display their absolute devotion to idealized principle. Here’s a clue, andy/actus. The NSA and other organizations have been doing this kind of stuff for decades without any noticable, serious effects upon the sainted privacy of Americans. Making the circular argument that the only way to really know if the program is being abused is to create the very sort of transparancy that might destroy its effectiveness (see Times, N.Y., Swift program) then your idealized principle creates a serious security concern, a concern that the vast majority of Americans hold very dear to their hearts (see Hierarchy of Needs, Maslow.)
I’m not saying we should hand the government the keys to our private lives. I am saying that adjustments for the nature of the threat and the resources available to the terrorists as well as an honest assessment of our ability to passively protect ourselves in a free society are necessary, should be examined soberly and not just dumped over the side because of some squishy idealized notion of the 4th Amendment. It certainly didn’t seem to be a big issue with the left of center crowd when Bubba was defending warrantless searches in the nineties so one wonders whether the party and principles of the person in the White House creates a different mindset.
I’m not willing to trade FISA as described for a dirty bomb in Kansas City. San Francisco, maybe, but not KC. (kidding)
Nuance: Take it for a test drive!
Where do you think the activists get their money?
“tangential to my comments upthread?”
HAH. The entire point of telecom immunity is to protect the telecoms from the only ongoing successful legal action.
“I understand, Todd, but my comments upthread, where I wove a deceptive one-can-win-one-of-these-lawsuits-’cause-they-don’t-have-standing'” was only tangentially related to the fact that 40 class action lawsuits have been allowed to proceed because they have standing (on appeal in the 9th Circuit and soon to be in a Supreme Court near you).
Tangential.
Here’s a link to a letter to the Wall Street Journal by two past AG’s and William Webster and precisely the danger of these class action suits (hint: find the word “billions” and “liability”) to the telecoms, which is why they are seeking immunity.
http://www.opinionjournal.com/extra/?id=110010805
“The fact that World Trade Center collapsed, Todd, was only tangential to the fact the buildings were rammed with airplanes”
–Karl
Mark Klein is an engineer with documentation who maintains the Feds tapped everything, which would be a statutory violation. Now, I understand all US laws are thrown out the window when the scary Muslims are invoked, but, if we could run the Russians into ground without having your precious police state govt listen to all our calls, why can’t we beat a bunch of ragtag engineering students from Riyadh?
Save the answer, it’s rhetorical.
As for ric lock, I cited the administration’s refusal to testify before Congress as proof that they will not tell us what they are doing (I understand rights are negotiable here, but in the real world, there are actual laws that constrain your magic protective govt and protect us from them…our did y’all sleep through the Church hearings). That refusal has nothing to do with Rove, except that he was one of three people subpoenaed by the people’s representatives (remember how the legislative branch is supposed to check the Executive and vice versa) and refused to testify. Your fascination with declaring what people do think marks you as a genius/Kreskin type. I sure hope you write some actual posts for the site. Those will be entertaining.
Just remember, though, if someone materially refutes you, you just call it “tangential.”
Todd – I ask you, since andy would not respond. How is someone that is paranoid that the government’s datamining may have included their number injured or harmed? How is someone that may have been wiretapped when a non-US number called them injured or harmed?
Billions? Give me a break. This is another example of lawyers making money and nothing else.
I cited the administration’s refusal to testify before Congress as proof that they will not tell us what they are doing …
Their refusal was based on the FACT that Congress is overstepping its bounds by trying to exert some type of control over the hiring and firing practics of US attorneys. Separation of powers and all that kind of mumbo jumbo.
Idiot.
Hey, I resemble that remark! Also unfortunate – Reid doesn’t have to run again until 2010, plenty of time to swing back toward the center and appear reasonable, and if current trends continue about 10% of the voters in that election don’t even live here yet. Even worse, many of them will be California transplants, who never seem to make the connection between the conditions that caused them to leave and the policies that created those conditions.
1. The legal action is a damned long way from success.
2. The point of immunizing the telcos is to keep them cooperative, which should be exceedingly obvious.
From the letter tbenzinger links:
If these companies are allowed to be sued then I cannot envision any company in the future assisting the government. They would be absolutely foolish. If not just your in-house counsel but the government itself assures you, in writing no less, that what you are doing is legal what other assurances could possibly be required.
This and the unwillingness to provide legal protection to those who report suspicious activities will discourage anyone from assisting the gov’t in preventing terrorist attacks.
Todd, it’s at least interesting that you should bring up “scary Muslims”. We do prefer to take reasonable and prudent steps to guard ourselves — and you — against people who consider themselves empowered by God to blow people up in a deliberate attempt to make themselves “scary”, and get frustrated when people like yourself prefer to add to that empowerment. It’s sometimes interesting, and always amusing, to contrast accusations of “bedwetting” with the shrieking paranoia you and your allies exhibit over the bare possibility that someone, somewhere, may have had his or her pizza order intercepted by the NSA. This is especially the case since the greatest expansion of the SIGINT capability of the UKUSA consortium came under another President, and did not occasion anything like this level of protest. I’m sure it’s only a coincidence that that President had a different letter after his name.
I can’t remember when the Echelon system was established, and in any case it’s been improved and modified a number of times. In googling around I found any number of breathless accounts based on an understanding of science more appropriate to Agatha Heterodyne (or, more likely, her mother) than to anything extant in the real world. The real NSA most likely reads those and shakes its head: “Don’t we wish.”
Regards,
Ric
todd,
Which statute does ‘tapping everything” violate? Because I sorta pointed out why it may not fall under FISA.
Also, if it’s news to anyone that phone calls with US persons were being intercepted by 9/11, Ric notes Echelon, underwhich it appears that Strom Thurmond was picked up by the NSA during the Carter Administration.
Not to mention the fact that Echelon was originally put into place to deal with the dreaded communists, a far more insidious foe by todd’s estimation than those ignorant rag heads. Yet I cannot help but think that even if the “evil empire” still existed today, people of todd’s ilk, buttressed by the NYT and the squishy sorts in the intelligence services, would still be filing lawsuits to protect TEH PRIVACY!!
I will say that I was one of those who was much bothered by Echelon and similar programs.
Then there was thing that happened a little over six years ago. Todd must have heard about it, it was in all the papers.
BECaUsE Of tEh PrIvAcY !!!!!!eleven!!!!one11111111111eleventy
Enron!! I knew they had something to do with this.
No, what I’ve figured out is that you are too stupid to be let out without a keeper, android.
The damages are the least of it. Every one of these lawsuits, no matter how frivolous, must be defended against. Preparing these defenses costs money. Remember, that was the whole point of suing the gun manufacturers. Didn’t matter that there was a Second Amendment if all the businesses supplying guns could be bankrupted by legal costs. Once again, the Copperheads are attempting to do an end run around the democratic process through the courts.
BTW, forgot to respond to andy on the state actor issue. If you look at his own link, you will discover a couple of interesting things. First, that “There is little uniformity among State and Federal courts as to the status of non-law enforcement public employees for purposes of the application of the Fourth Amendment.” Second, the analysis ultimately relies on the 9th Circuit’s decison in Attson, which did not concern the question of state action but rather whether a state actor’s conduct constituted a search. Moreover, as the existing case law consistently refers to the fact-specific nature of the inquiry, it’s far from clear that the analysis would apply to activity undertaken for the primary purpose of collecting foreign intelligence, as opposed to law enforcement purposes.
“What expectation of privacy is there with the address on the outside of an envelope?”
None. But the law has created privacy interests in certain information held by telecommunication providers.
“Why should the NSA divulge the workings of national security programs just to assuage someone’s perception that they MAY have been wiretapped?”
I don’t think this lawsuit will ask the NSA to divulge anything.
“Every one of these lawsuits, no matter how frivolous, must be defended against. Preparing these defenses costs money.”
Depending on how frivolous it is, you get that back. Now, i know it’s not frivolous, so I do sympathize with you that it will cost them money. Even worse, the law provides that the aggrieved person’s attorney fees are paid by the lawbreaker. All of this is in there for a purpose: to protect the privacy of this information.
“First, that “There is little uniformity among State and Federal courts as to the status of non-law enforcement public employees for purposes of the application of the Fourth Amendment.—
So they cite to the 9th circuit and we are discussing a case in the 9th circuit….
“Second, the analysis ultimately relies on the 9th Circuit’s decison in Attson, which did not concern the question of state action but rather whether a state actor’s conduct constituted a search.”
The analysis in that case? I don’t cite to what they ultimately decide. Just the issue of someone being an agent or instrumentality of the state.
“Moreover, as the existing case law consistently refers to the fact-specific nature of the inquiry, it’s far from clear that the analysis would apply to activity undertaken for the primary purpose of collecting foreign intelligence, as opposed to law enforcement purposes.”
Far from clear? Seems like a simple two part test. I do agree that it depends on the facts. Lets have the discovery!
Senor Mendacity returns. As he inadvertantly pointed out, they want money, and for the US to divulge the workings of a NSA program.
Karl – leftists do not differentiate between intelligence gathering and law enforcement. That would be inconvenient to their “arguments”.
“As he inadvertantly pointed out, they want money, and for the US to divulge the workings of a NSA program.”
The MAN made made the law, man. Its sad to see the telecom companies oppressed by the man.
“Karl – leftists do not differentiate between intelligence gathering and law enforcement. ”
Isn’t the idea of the so-called “wall” that people kept bitching about (gorelick, 911 commission, etc….) dependent on that differentiation?
The MAN also enlisted their help and assured them that they were not being asked to do anything illegal. Now a group of ambulance-chasers want to cash in on the telecoms’ naivete in believing that our gov’t would actually honor its promises. They are being aided by their lapdogs in Congress, who don’t have the courage to explicitly declare the program illegal but are perfectly willing to let the ambulance-chasers do their dirty work for them.
In a word, no.
“The MAN also enlisted their help and assured them that they were not being asked to do anything illegal. ”
Not so sure. Congress passes laws, with the president signing them, and then the judiciary adjudicating. Thats everyone. Talk about the man. Some dude in the executive branch assuring the companies that work with (and helped to write!) these laws? Not so much the man.
I guess the man lied to ’em.
“They are being aided by their lapdogs in Congress, who don’t have the courage to explicitly declare the program illegal but are perfectly willing to let the ambulance-chasers do their dirty work for them.”
Congress passed the laws that make these things legal or not. I only know of hte hepting case, and its not ambulance chasers. Its a non-profit doing that lawsuit. Who are the ambulance chasers doing the suing?
“In a word, no.”
No? Wasn’t “the wall” about separating law enforcement from intelligence work?
So none of us can ever be sure that what we’re doing will not open us up to civil liability. There is no assurance from anyone in government that is binding as long as some enterprising attorney/plaintiff is able to find a sympathetic judge/jury willing to interpret the law in their favor. Comforting.
Just because one or more lawsuits may not have been filed does not mean there is not a bevy of firms chomping at the bit to file them when they are certain there will be no immunity. If not, why is immunity necessary. Oh, and nonprofit does not necessarily mean not driven by financial concerns. The executives of many nonprofits are very well-compensated. Even a nonprofit needs money from somewhere to promote its agenda and the more money the better its agenda may be promoted.
“The wall” was not dependent upon the difference between law enforcement and intelligence it was an attempt to define that distinction. It did so quite arbitrarily and very poorly in many cases.
If andy cannot be bothered to read his own links, I can’t help him.
Also, enough comments have passed by that it’s time for a reminder that this issue will, in all probability, be moot in a month or so, due to a bipartisan consensus that the telcos should get immunity. Which may explain why andy and todd are doing their venting now.
“So none of us can ever be sure that what we’re doing will not open us up to civil liability.”
You can read the law. If you’re a big telecom, your lawyers are already intimately familiar with the laws that tell you how you must handle costumer data. Because government agencies are regularly coming to you with subpoenas and wiretaps.
“There is no assurance from anyone in government that is binding as long as some enterprising attorney/plaintiff is able to find a sympathetic judge/jury willing to interpret the law in their favor. Comforting.”
In fact, it IS! An executive branch official cannot just say that something is legal and have that be binding on other branches. Thats not how laws get made in our system of separated powers. A civics class would teach you that, and a telecom lawyer would know it.
“If andy cannot be bothered to read his own links, I can’t help him.”
Listen man, this bit is weak. I sent you that link for only the proposition on agent and instrumentality. You know that. You know that that argument doesn’t depend on what that case ultimately did. Its a utah supreme court case. It’s not going to be binding on the 9th circuit or even a federal court in san francisco. But its citation of a 9th circuit opinion? That citation is important. Thats all.
Envelope information is, AFAIK, not part of that “certain information”. Again, you MUST reveal both your phone number AND the destination phone number in order to make a connection, and you must reveal that to multiple parties. Insisting you have an expectation of privacy on something that MUST BE REVEALED FOR THE TECHNOLOGY TO FUNCTION is asinine.
“Envelope information is, AFAIK, not part of that “certain informationâ€Â.”
It is. One of the sources of this protection is section 222 of the telecoms act. You can read it if you like. The short answer is that the numbers you dial are considered CPNI (Costumer Proprietary Network Information) and there are certain protections it gets.
“Insisting you have an expectation of privacy on something that MUST BE REVEALED FOR THE TECHNOLOGY TO FUNCTION is asinine.”
You asked me what expectation of privacy there was, and I said none. You’re being asinine and insisting here.
Aggressive ignorance or willfully obtuse?
“Aggressive ignorance or willfully obtuse?”
I think bob just thinks he knows more than he actually does
Douche’ andie.
Costumers have a network? Are they on strike, too?
B Moe, you have no idea how strict some of them arts unions are. I always liked when the orchestra started showing up for rehearsals, it meant we singers finally would be leaving on time and we’d get longer breaks.
Maggie – No kidding. Incredibly strict. I once saw a flautist pick up a piccolo and start to play it, and the union rep went nuts !
Is a flute player a fluter, a flutist, or a flautist ? For some reason, flautist sounded right, and I am too lazy to google it. Maybe steve can tell us.
Zanfir was the premier skin flautist of all time.
Zamfir. I just know that cause he was on the Kill Bill soundtrack.
Zamfir too. He is one bad-ass skin flautist.
I am getting ready for my trip down to Houston, much packing to do. It will be nice to leave the icebox otherwise known as the midwest.
I totally get The Lonely Shepherd now.
Oh. Houston is where I got borned. Would love to get back there sometime.
Did the youtube video give it away, happyfeet?
BTW, andy is relying Attson, but the discussion of agency in Attson was pure dicta, as that case involved a state actor in the first place. Whether the 9th Circuit would see that analysis as relevant in the radically different factual situation at issue here — and whether the Supremes would do the same, given the 9th’s track record as of late — are interesting questions, but ones likely to be mooted in Jan. or Feb.
I am just looking forward to warmer weather, and hella good Vietnamese food. We have a Vietnamese wedding and a Vietnamese family reunion to go to. As always, I am going to be the only non-Vietnamese person at both, and will be approximately a foot taller than everyone else there. It will be impossible for me to sneak out for a cigar, or a smoke.
I saw that when I googled but I can’t watch YouTube while my firewall is up and I am illegally downloading 10,000 Maniacs illegally under penalty of legal sanction, but mostly I was just thinking that Zamfir probably had his own ideas about how he could help the shepherd feel less lonely, given his remarkable range as a flautist.
andie was confused? You don’t say. I have a simple way of viewing these things. If andie tells me it means A, and Karl tells me it means B, I believe Karl. If Karl tells me something means A, andie will never propose a B, he will simply give the not-A answer. That is, unless andie is engage in his other tricks, like saying well what about … C?
happyfeet – That video shows nicely why he is considered the leading skin flautist in all the world. At the very least, it should quell any doubts.
Merciful God. I never knew a flute could quiver like that. I wonder if it hard to learn to do that standing up.
If it *was* hard…
I mean…
nevermind.
ROTFLMAO … good night all.
“BTW, andy is relying Attson, but the discussion of agency in Attson was pure dicta, as that case involved a state actor in the first place.”
I can’t rely on Attson. It’s a utah supreme court case. I just use it as a citation of the principles from the 9th circuit case: Walther v. United States , 652 F.2d 788, 791-92 (9th Cir. 1981).
All along you haven’t noticed that?
All of those cites, and it still never quite gets the point.
[…] our esteemed host’s continuing interest in the Terrorist Surveillance Program and the recent wrangling over proposed amendments to ISA containing telecom immunity, I note the Democrats who punted the […]