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FISA, Yahoo and the GOP Double-Standard on Telecom Immunity

November 14, 2007

As the Senate Judiciary Committee prepares to debate the renewal of FISA revisions made in August, President Bush and his Republican allies in Congress are endorsing a unique double-standard when it comes to immunity for telecommunications firms. Within the United States, they argue, service providers such as AT&T and Verizon must cooperate with U.S. government demands for access to Americans' electronic communications and should be immune from citizens' lawsuits. But in China and elsewhere, as Republican reaction to this week's Yahoo saga suggests, not so much.
The Bush administration bill, supported by Intelligence Committee Chairman Jay Rockefeller (D-WV) and virtually all Republicans in Congress, allows the Attorney General and Director of National Intelligence to issue year-long surveillance orders without prior court review where one party is outside the U.S. There are no protections for Americans who may have no connection to a foreign "target"; their electronic communications will be swept up in the same dragnet. Importantly, so-called electronic communications providers (or ECP's) are compelled to cooperate with government directives requiring surveillance or information access or risk of substantial fines and contempt of court charges. (Grounds for appeal via the FISA court and the Supreme Court are limited.)
In return, the companies gain immunity from civil lawsuits for their role in enabling NSA domestic surveillance of their customers' data and communications dating back to September 11, 2001. Section 202 of Title II gives the Attorney General unilateral power to decide that "a covered civil action shall not lie or be maintained in a Federal or State court, and shall be promptly dismissed" on his certification alone.
But as the controversy surrounding Yahoo this week shows, Republican leaders strike a mirror image pose when it comes to protecting Chinese civil liberties. Put another way, what telecommunications firms must do (and should be protected in doing) to assist the U.S. government in monitoring their customers, they must never do in China and elsewhere.
First, a little background. On Tuesday, Yahoo settled lawsuits brought by two Chinese journalists who had been jailed as a result of the company's provision of their user information to the Beijing government. Yahoo's surrender came just days after founder Jeff Yang and general counsel Michael Callahan were rightly savaged by the House Foreign Affairs Committee. Chairman Tom Lantos (D-CA) condemned Yang and Callahan as "moral pygmies" for cooperating with a Chinese government "subpoena-like document" to supply information about journalists accused of the "illegal provision of state secrets." Committee member Chris Smith (R-NJ) went further in a blistering critique of Yahoo, firms that cooperated with Nazi Germany during World War II:

"There certainly is a parallel here. People are being tortured and mistreated today because of that complicity."

And so with no sense of irony, Smith reiterated his call for passage of his proposed Global Online Freedom Act. As Wired reported yesterday, Smith's bill in essence stands the telecom immunity and compulsory ECP cooperation mandates of the Protect America Act on their head:

In a statement issued Tuesday, Rep. Chris Smith of New Jersey said that the settlement doesn't obviate the need for his proposed bill, which would among other things make it illegal for US tech companies to divulge identifying user information to repressive regimes, and allow affected parties to bring civil suits against such companies in the United States.
"As a nation, we have a responsibility to continue to push for the release of these human rights leaders and pass the Global Online Freedom Act to prevent this egregious human rights abuse from happening to others," said Smith in a statement. "Much like the Foreign Corrupt Practices Act, my legislation will make certain that US companies are not compelled to comply with local Secret Police or any other unlawful policies when operating in foreign markets."

For China and other repressive nations, Smith's bill inverts his support of the draconian infringements to American civil liberties he voted for in August. Despite the almost certain unconstitutionality of President Bush's regime of illegal NSA domestic surveillance prior to August 2007, Smith and his Republican allies would both compel American firm to cooperate with the Bush's administration's "unlawful policies" and protect them from subsequent lawsuits. (Senator Russ Feingold is offering an amendment to strike retroactive immunity for precisely this reason.) But in China, Yahoo, Google and other service providers would face precisely the reverse.
No doubt, legislation is needed to prevent firms like Yahoo from succumbing to censorship and privacy violations that jeopardize the freedom - and lives - of their users in countries like China. No doubt, the intent of Rep. Smith's bill is to target only "repressive" regimes (including those in Belarus, Cuba, Ethiopia, Iran, Laos, North Korea, the People's Republic of China, Tunisia, and Vietnam), and not the democratic United States.
Sadly, in George W. Bush's America, it is getting harder and harder to tell the difference.


About

Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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