Senate Judiciary Poised to Pass Total Information Awareness Bill

The bill would quash about 40 pending lawsuits against AT&T by granting it full retroactive legal immunity for its alleged role in helping the National Security Agency (NSA) acquire the contents of millions of domestic and international electronic messages sent by American citizens through the AT&T network. These messages were allegedly routed to secret rooms requiring NSA clearance hidden deep inside major AT&T hubs throughout the United States for purposes of building a massive data mine. This unprecedented surveillance offensive was first exposed in 2005 when an AT&T employee at the San Francisco hub blew the whistle.

According to the Electronic Frontier Foundation (EFF), a civil liberties organization based in San Francisco that has filed a class action suit against AT&T, the company had installed a fiber-optic splitter at its San Francisco office that copies all e-mails and other Internet traffic passing through the system and deposits these copies into a separate government computer network. The EFF alleges that the secret NSA rooms, to which the copies are sent, contain "powerful computer equipment connected to separate networks. This equipment is designed to analyze communications at high speed, and can be programmed to review and select out the contents and traffic patterns of communications according to user-defined rules" (emphasis added).

With this cooperation from the telecoms, the Bush Administration now appears to have realized a major component of its TIA project, a publicly denounced program that was presumed to have been abandoned by the Bush Administration. The purpose of this project was to "imagine, develop, apply, integrate, demonstrate and transition information technologies, components and prototype, closed-loop, information systems that will counter asymmetric threats by achieving total information awareness." In its present form, the integrated surveillance network has the capacity to maintain fully searchable copies of the contents of all electronic communications of American citizens. Since there is virtually no judicial oversight, the Bush Administration now has a blank check to define its search criteria any way it wishes, not only to look for terrorists but also for anyone else it may deem a threat -- including investigative reporters and political opponents.

The implications of a government in possession of such an awesome power are profound and far-reaching. These dire consequences include the potential for systematic and widespread disruption of fair elections in the United States. In these months prior to a national election, the Bush Administration now has the capacity to read private correspondence between its Democratic opponents and thereby to gain unfair political advantage. It has the capacity to blackmail congressional and other government agents into lockstep conformity with its mandates.

It accordingly has the power to eviscerate not only Fourth Amendment rights against unlawful search and seizure, but also to invade and chill off First Amendment rights of freedom of speech and the press. In short, it has the power to shut down democracy in America. It is therefore not surprising that the Bush Administration now seeks to immunize the telecom companies from civil suits and judicial scrutiny since the unfettered operation of these companies is a vital component of its TIA network.

It is also not surprising that S.2248 gives telecom companies retroactive immunity for its role in helping government to secure the contents of e-mail and other electronic communications. According to Title 2, Section 201 of the bill, "the term 'assistance' means the provision of, or the provision of access to, information including communication contents…" (emphasis added). The bill also states that "the term 'contents' has the meaning given that term in section 101(n) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(n)). According to this provision of the 1978 law, "Contents," when used with respect to a communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication." However, 1802(a) of the same law states unequivocally that "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party;"

Unfortunately, proposed bill, S. 2248 uses the 1978 FISA law's definition of "content" to legally protect telecom companies to systematically and en mass acquire and provide government with the contents of any and all communications to which a United States person is a party. This is in glaring contradiction to the nature and purposes of the 1978 FISA act in the first place -- which was to protect American citizens from falling victim to government eavesdropping while at the same time providing facility for government to conduct surveillance of "the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers" (emphasis added).

Not only does the current bill insulate the telecoms from lawsuits made by private citizens; but it also preempts investigations by state governments. According to Section 803, "No State shall have the authority to-- '(1) conduct an investigation into an electronic communication service provider's alleged assistance to an element of the intelligence community' or to "(2) require through regulation or any other means the disclosure of information about an electronic communication service provider's alleged assistance to an element of the intelligence community…" The proposed bill therefore provides ironclad retroactive legal protection to the telecoms.

In the United States, no American person, corporate or otherwise, can be lawfully given legal immunity to violate the Constitutional rights of other American persons. Provision 1801(h) of the said 1978 FISA act clearly states,

no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained….

This was the law of the land that prevailed between September 11, 2001 and January 17, 2007, the times to which S. 2248 exempts the telecom companies from legal accountability. These companies are American persons and are therefore legally accountable. To exempt one person from legal requirements in order that this person can violate the constitutional rights of other American persons violates equal protection under the law, and is unconstitutional. In giving these companies a free pass, Congress will affectively be relinquishing the rule of law.

During Nazi Germany, Hitler enlisted IBM's punch card computer technologies to identify Jews, trace their ancestral roots, and ultimately exterminate them. With the evisceration of the Fourth Amendment protections against unreasonable search and seizure -- and consequently the chilling of First Amendment rights of free speech and the press -- the specter of Nazi Germany hovers over America. If history teaches anything, it is that such unregulated unitary executive authority portends grave risks to national security.

A BUZZFLASH GUEST CONTRIBUTION

Elliot D. Cohen, Ph.D. is a media ethicist and critic. His most recent book is "The Last Days of Democracy: How Big Media and Power-Hungry Government Are Turning America Into a Dictatorship." He is a first-prize winner of the 2007 Project Censored Award.