Forget Retroactive Immunity, FISA Bill Is Also About Prospective Immunity

Leave it to George Bush to point out a little-noticed aspect of the FISA bill that he likes, but you should hate.

In his chortle over the Democratic cave-in on FISA, Bush said, "It will ensure that those companies whose assistance is necessary to protect the country will, themselves, be protected from lawsuits for past-or future-cooperation with the government."

The news lies between those dashes.

Opponents of the FISA bill, from the ACLU to Russ Feingold, have been focusing on retroactive immunity for AT&T and Verizon and the other telecom companies.

But what may be even more alarming is the prospective immunity that telecom companies and Internet service providers and others are guaranteed by this bill.

Here are some of the relevant passages:

"The Attorney General and the Director of National Intelligence may direct, in writing, an electronic communication service provider to a) "immediately provide the Government with all information, facilities, or assistance necessary . . . b) maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the acquisition or the aid furnished. . . ."

And here's the kicker: "No cause of action shall lie in any court against any electronic communication service provider" for providing this information.

Thus we have the Congress granting to the Executive Branch and the private sector enormous new powers to violate our privacy.

In essence, the government can now conscript the private sector to do its dirty work. But don't pity the companies; the government will pay them for coughing up our secrets, the bill says. "The government shall compensate, at the prevailing rate, an electronic communication service provider for providing information, facilities, or assistance."

It gets worse.

The prospective immunity extends beyond telecom companies and ISPs to include even landlords and custodians, and it is not limited to the provision of communication contents or records.

Check out Title VIII: "Protection of Persons Assisting the Government." A "person" is defined as "an electronic communication service provider" or "a landlord, custodian, or other person who may be authorized or required to furnish assistance. . . ." Note how wide open is the category of "other person."

And "assistance" is defined as "the provision of, or the provision of access to, information (including communication contents, communications records, or other information relation to a customer or communication), facilities, or another form of assistance." Notice how wide open is the category of "another form of assistance."

All of these "persons" providing "assistance" are now immunized by this bill for their future actions so long as the Attorney General certifies them in court.

Look what's happening here: The combined powers of the Executive Branch and the private sector are now arrayed against the individual.

This is not what our Founders had in mind.

Matthew Rothschild is the editor of The Progressive magazine.

(c) 2008 The Progressive

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