Eavesdropping a quiet menace
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As someone who’s been writing a liberal column for a largely conservative readership for nearly seven years now, I’m quite familiar with the old saying about tilting at windmills.
Nevertheless, I press on, because I learned all the way back in elementary school that popularity and accuracy are mutually exclusive concepts. For example, I opposed the Iraq war in columns going back to 2002, in the days when President 30 Percent was President 80 Percent.
And if my stance hasn’t made me more popular with Sentinel readers over that span of time, it’s quite obvious that somebody got a whole lot less popular, and in large part because of that issue.
Warrantless wiretapping is another issue that gets me grief from the armchair strategists in the War on Terror. Ever since I read in Wired magazine about Mark Klein, the former AT&T technician who described how the federal government had the capability to intercept every scrap of data at one of the telecom’s busiest switch locations, I’ve been concerned about the likely abuse of this sort of unlimited surveillance.
Klein, who is testifying for the Electronic Frontier Foundation’s lawsuit against AT&T, explained that the firm helped the NSA set up a parallel data processing center at the telecom’s central office in San Francisco. Hundreds of millions of phone calls, e-mails, Web page requests, instant messages and more pass through this point every day.
Klein also said he was personally aware that similar facilities were being set up in Seattle, San Jose, San Diego and Los Angeles.
This level of brute force message gathering far exceeds any capabilities the feds would need if they are simply trying to trap foreign communications from terrorists. A request to a judge under the Foreign Surveillance Intelligence Act (FISA) would procure a warrant — FISA judges have rejected only five requests in the three-decade history of the act — that would be legally binding on any telecom company, which would then set a wiretap and accumulate evidence for the feds.
The wiretap could even be set without the warrant under FISA. Law enforcers can get the wiretap first as long as the warrant is granted within 72 hours. And foreign-to-foreign communications, many of which get routed through American-based switching stations, require no warrant at all.
But if you’re sweeping through every single message and call you can get your hands on, you’re violating the Fourth Amendment’s probable cause provision. Not to mention that you’re examining far more communications of innocent Americans than you have any need to. Hence the EFF/AT&T lawsuit.
That one, and a number of others, would be pre-empted by legislation that passed the Senate a while back that includes retroactive indemnity against lawsuits for telecoms.
And once again I find myself tilting against windmills. I have no doubt that Congress, in the end, will bend over for this administration and give it everything it wants, including telecom immunity.
Still, the House has so far stuck with its bill that doesn’t void telecom lawsuits, resulting in a lot of dishonest posturing by the president and his intelligence director. They have, however, been remarkably candid about bailing the telecoms out of these “expensive lawsuits” being brought by “trial lawyers.”
The “trial lawyer” canard is a lie, of course, since EFF is a lightly endowed non-profit organization that pays its lawyers about a third of the going rate. Other plaintiffs are in similar situations.
I’m willing to stipulate that lawsuits are expensive, but this has me wondering why, if the telecoms are so afraid of depriving their shareholders of equity — an excuse made for them by the president the other day — how come they aren’t front and center lobbying for this?
Surely my wired and wireless phone, Internet and TV providers would send me bulk e-mails or fill my bill envelope with little circulars about this issue? But they haven’t.
And then I discovered via Kevin Drum at the Washington Monthly an essay by “bmaz,” a lawyer with communications law experience who blogs anonymously for Proctoring Congress and Emptywheel. He believes the feds have indemnified the telecoms against damages. He claims it’s standard operating procedure in these cases.
In other words, the EFF could win a $10 billion judgment against AT&T and the company’s shareholders wouldn’t even blink — because the taxpayers would be on the hook.
This brings us back around to my original theory — that the only reason to keep the telecom lawsuits out of court is to keep citizens from knowing just how easily the government can get into their personal business — and whether they already have.
In the end, it comes down to the personal honesty of whoever has the keys to the NSA parallel data room as to whether the next name that gets typed into the search field is that of a terrorist suspect or a political opponent.
Based on this administration’s track record, I wouldn’t bet against the latter scenario. I think the wind’s at my back on that prediction.
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Francis Volpe’s e-mail address is:
fvolpe@cumberlink.com
