Revisiting telecom immunity
Everyone’s all up in arms about Obama voting in favor of telecom immunity. The libertarian-tech community is pissed.
I was, too, until I thought about it. This country has a long history of covert COMINT (that’s communications intelligence) programs that have made hugely significant impact on history. Failure to offer immunity to the telecom companies could effect our ability to engage in COMINT activities in the future.
Here’s a bit of history:
The American Black Chamber is just one of the many noble eavesdropping programs that this country has engaged in to great effect. It’s worth noting that the Black Chamber, also known as MI-8, was shut down by Secretary of State Henry Stimson who famously said that “Gentlemen do not read each other’s mail.” Among other things, the Black Chamber helped us by intercepting and decrypting Imperial Japan’s diplomatic communication during the Washington Naval Conference. Its primary methodology? Western Union delivered copies of telegrams of interest directly to the Black Chamber’s New York City offices.
Was that legal? Maybe. Maybe not. Was it helpful? Did it protect American national security? Undoubtedly. Should it be controversial? Not on your life.
Since the Black Chamber we’ve gradually formalized COMINT in this country. The breaking of Enigma and Purple (the Japanese diplomatic cipher). We’ve eavesdropped on Soviet undersea fiber optic cables. We’ve done lots more that hasn’t been declassified yet. All of this has protected America and saved lives — both American and foreign.
I’m not going to defend the top-secret eavesdropping program that Bush engaged in. He violated the law. He went outside the perfectly adequate FISA. He violated the trust of the American people and, frankly, violated the Constitution.
So why would you want to extend immunity to American telecommunications companies that willingly participated in an illegal and ethically repugnant program to eavesdrop on American citizens participating in perfectly legal telephone calls? Because failure to do so would have a chilling effect on America’s ability to eavesdrop on its enemies in the future. You don’t want to get into a situation where American companies say “no” to intelligence agency’s requests to listen in on communications because they’re worried about criminal and civil liability.
How much would it have sucked if Western Union had said “no, we’re worried about our liability” when the Black Chamber requested the Japanese diplomatic telegrams in ‘21?
This, of course, leaves us with a significant issue: how do we discourage illegal eavesdropping programs? We have a long history of offering immunity to the Executive Branch for many crimes for the same reason I’m suggesting that we extend immunity to the telecoms. Shouldn’t the same reasoning apply? And if it does, how do we discourage this behavior?
I’d argue (and I believe that history agrees) that executive immunity doesn’t extend to executive actions that are obviously illegal and inappropriate. Just ask Nixon. So instead of going after the telecoms (whose cooperation we need in the future) we should be going after the elected officials and political appointees who damn well should have known better.
American COMINT collection ability is preserved, and our representatives are held accountable.
