BLOWBACK

Congress rolled over on FISA

The key figure behind California's Telephone Privacy Act says the new legislation shatters the rule of law.

By Robert Jacobson

July 14, 2008

Nancy Soderberg’s advice to the Senate -- to simply forgive and forget the telephone companies' crimes against the American people and the Constitution -- is sickening. Soderberg argued that voting for the FISA warrantless wiretapping legislation was pragmatic and just, even though it slammed the door on current lawsuits against AT&T and Verizon for these crimes.

Why are we not surprised to hear such legal sophistry from a former member of the Clinton administration that gave us the Telecommunications Reform Act of 1996 and with it, a revived national telephone duopoly?

Too bad that the Senate and President Bush agreed with Soderberg when they approved the new Foreign Intelligence Surveillance Act last week, following the House's lead. Congress, for no discernible public benefit, rolled over before telecommunications and White House lobbyists, granting telecommunications companies immunity from lawsuits in which federal district courts have already found merit.

This craven legislative act has created two unbearable legal precedents. First: The courts can no longer be relied on to settle the law. Second: Powerful people and corporations can violate the law with impunity as long as other powerful people and corporations agree. Such is the pathetic state of American justice today.

The practical consequence of the Senate's vote for immunity is that Bush and Vice President Dick Cheney now have carte blanche to write their own pardons for the unconstitutional acts they committed when they solicited the telecommunications companies for unlawful acts. The new FISA law gives everyone involved an easy out by simply ending the telecom companies' trials. Because the evidence of the crimes will never be heard, the new law prevents citizens, companies, organizations and even politicians from finding out what has been taken from us, information that may be used against us. The telecommunications companies willingly broke well-established laws regarding privacy and communications (including California's unique Telephone Privacy Act), collecting and sharing tens of millions of our phone call records. Congress has taken away Californians' legal recourse.

I'm a party to the original American Civil Liberties Union suit against AT&T and Verizon in California. In becoming a plaintiff and an expert witness, I put my reputation on the line and challenged the telecoms to do the same. Our case was proceeding nicely through the courts -- and then the new FISA became law. In this cat-and-mouse game, the ACLU has had to file a national suit to protect our ability to seek redress.

The new FISA law additionally legalizes warrantless wiretapping, vitiating the 4th Amendment and, by extension, the 1st Amendment and the California Constitution's Privacy Clause, because wiretapped speech is never free or private.

I was aghast to learn that one of my senators, Dianne Feinstein, and my candidate for president, Sen. Barack Obama, voted for warrantless wiretapping and telecom immunity. (I was proud of my other senator, Barbara Boxer, who voted against the bill.) Not only did Feinstein and Obama diminish our free speech and privacy rights, they also stripped me and every Californian -- every American -- of our ability to know what powerful people and corporations know about us. They have gravely wounded our rule of law.

Robert Jacobson, PhD., helped draft California's Telephone Privacy Act in 1985.