Government Surveillance Threatens Your Freedom, Even If You Have Nothing To Hide

By John Dean, FindLaw.com. Posted October 20, 2007.

"I've got nothing to hide, so electronic surveillance doesn't bother me. To the contrary, I'm delighted that the Bush Administration is monitoring calls and electronic traffic on a massive scale, because catching terrorists is far more important that worrying about the government's listening to my phone calls, or reading my emails." So the argument goes. It is a powerful one that has seduced too many people.

Millions of Americans buy this logic, and in accepting it, believe they are doing the right thing for themselves, their family, and their friends, neighbors, community and country. They are sadly wrong. If you accept this argument, you have been badly fooled.

This contention is being bantered about once again, so there is no better time than the present to set thinking people straight. Bush and Cheney want to make permanent unchecked Executive powers to electronically eavesdrop on anyone whom any president feels to be of interest. In August, before the summer recess, Congress enacted the Protect America Act, which provided only temporary approval for the expanding Executive powers under the Foreign Intelligence Surveillance Act (FISA). These temporary powers expire in February 2008, so Congress is once again addressing the subject.

The FISA amendments: the administration is seeking immunity for miscreants

Because of the way electronic traffic is directed from foreign countries through the United States, the FISA Court had previously rejected requests to intercept certain foreign-person- to-foreign-person communications in the United States. It was a technical problem, arising from the fact that FISA was written before modern data routing had been designed, and FISA thus needed fixing. On this, everyone agreed.

However, when the Bush Administration asked for the necessary fix to FISA, it also requested much more, including immunity under the existing laws for all the telecommunications companies that have been assisting the government in its illegal warrantless surveillance. Significantly, this practice -- justified by reference to the "war on terror" -- apparently started well before 9/11 under the Bush Administration.

Ironically, in requesting this immunity, the Bush White House has refused to disclose exactly what type of activities Congress would be retroactively immunizing. Preliminary congressional inquiry has revealed that a massive amount of electronic surveillance of Americans has gone on under the Bush/Cheney Administration. For example, one of the telecom giants, Verizon, reported that between January 2005 and September 2007 they provided information on 94,000 occasions. These numbers suggest that Verizon was operating as merely another (and a secret) extension of the federal intelligence establishment.

Many of the companies appear to be violating a number of federal criminal statutes -- such as 18 U.S.C. 2511, which requires a warrant for such surveillance and 18 U.S.C. 2702, which prohibits any "entity providing an electronic communication service to the public" from knowingly divulging "to any person or entity the contents of a communication" without a court order.

Currently, the telecoms are not likely to be particularly worried about being prosecuted by the very same government that instructed them to violate the law, and is leading the way in doing so itself.

But what about under the next Administration? The five-year statute of limitations will make them potentially criminally liable after Bush is gone -- at least, unless the Bush Administration gains for them retroactive and future immunity. In a new Administration, the telecoms may be viewed not as cooperative patriots, but rather as criminal co-conspirators.

Civil liability appears to be driving the immunity request

Meanwhile, civil liability for these companies is also a realistic prospect. For example, in a San Francisco federal court, AT&T customers are seeking to protect their privacy with actions under laws like 18 U.S.C. 2520, which provides a civil remedy and hefty damages -- ranging up to $10,000 per day per violation. Since it is possible that, over five-plus years, there have been tens upon tens of thousands of such violations, the, if liable telecoms could be looking at hundreds upon hundreds of millions of dollars of damages.

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About author John W. Dean is a columnist for FindLaw and a former counsel to the President.

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