The Telecommunication Immunity Bill of 2008, officially known as the FISA Amendments Act of 2008, granted retroactive immunity to telecommunication companies that assisted the government in warrant-less wiretapping programs. This bill essentially legalized the president’s previously unlawful surveillance activities. The Senate passed this bill with a vote of 69 to 28, and it was expected to be signed into law by President Bush[1][2][3].
The bill faced criticism for violating the Fourth Amendment, weakening judicial oversight, and infringing on privacy rights. The ACLU strongly opposed this legislation, citing concerns about the erosion of civil liberties and privacy protections. The ACLU announced plans to challenge the law in court, emphasizing that it allowed warrant-less and dragnet surveillance of Americans’ international communications[1].
Despite opposition, the bill ultimately granted immunity to telecommunication companies involved in government surveillance activities and dismissed numerous lawsuits against these companies. This move was seen as a significant expansion of government surveillance powers and a blow to privacy rights[4][5].
UPDATE January 2025
Mass Spying: Legal but Unconsitutional
Mass surveillance programs, while often implemented through legally enacted legislation, frequently violate constitutional protections against unreasonable searches and seizures, infringing on citizens’ privacy rights and civil liberties, as evidenced by numerous court rulings and legal challenges across various jurisdictions[31][32][33]. While laws passed by legislatures are presumed to be legal, they can still be found unconstitutional if they violate the principles or provisions of the Constitution. This distinction arises because constitutions, particularly the U.S. Constitution, are considered the supreme law of the land, against which all other laws are measured[25][29].
Judicial Review
A law may be properly enacted through the legislative process, making it technically “legal,” but if it conflicts with constitutional rights or principles, courts can declare it unconstitutional and therefore unenforceable[28]. This judicial review process, established in cases like Marbury v. Madison, allows courts to strike down laws that overstep constitutional boundaries, even if they were legally passed[26]. The result is that a law can be simultaneously legal in its creation but unconstitutional in its substance or application.
Hidden Methods Allowed to Thwart Oversight
The government’s strategy of keeping surveillance methods hidden serves as a legal shield against challenges to mass surveillance programs. In cases like Amnesty v. Clapper, the inability to prove exact surveillance methods has been used as a defense against claims of unconstitutional spying[39][43]. This tactic effectively prevents potential plaintiffs from establishing standing to sue, as they cannot definitively prove they were surveilled[45].
Edward Snowden’s revelations exposed the extent of these programs, but the government’s response has been to further emphasize secrecy rather than address constitutional concerns[40][42]. This approach creates a paradoxical situation where potentially unconstitutional actions are protected by their classified nature, making them nearly impossible to challenge legally.
Sign of a Failed Democracy?
Imagine a man claiming a car is a national secret to avoid accountability for actions committed with it. That illustrates the legal strategy. There is tension between national security claims and the need for transparency and accountability in a democratic society[43][47].
Legal Standing and Court Rulings
The courts have upheld the provisions of the FISA Amendments Act of 2008, which allows for government surveillance, despite arguments that such practices may be unconstitutional. Here are key reasons why courts have supported this legislation:
1. Standing Issues: In cases like Amnesty v. Clapper, the U.S. Supreme Court ruled that plaintiffs lacked standing to challenge the constitutionality of the warrantless wiretapping program because they could not prove with certainty that their communications were being intercepted. The Court emphasized that without specific evidence of surveillance, individuals could not demonstrate a concrete injury necessary to establish legal standing to sue[2].
2. Judicial Deference: Courts often exhibit deference to the government’s claims regarding national security. The FISA court, which oversees surveillance requests, has historically granted broad leeway to government agencies in their surveillance activities, reflecting a tendency to prioritize national security interests over individual privacy rights[4][5]. What would you expect when the people being investigated are watching every thing the investigators and judges do or have ever done?
3. Constitutional Interpretation: The courts have interpreted the FISA Amendments Act as providing a legal framework for surveillance that is consistent with national security needs. For instance, while some rulings have acknowledged potential Fourth Amendment violations, they have often concluded that the government’s actions were justified under the law as it stands, especially when involving foreign intelligence operations[5].
4. Limited Judicial Review: The FISA court operates under a different standard than typical courts, often dealing with classified information and secretive proceedings. This limits the ability of the public and even some legal representatives to fully engage in or contest the proceedings, leading to outcomes that may not fully address constitutional concerns raised by civil liberties advocates[1][2].
Ongoing Legal Challenges
Despite these rulings, there are ongoing legal challenges against the FISA Amendments Act. Organizations like the ACLU continue to argue that the law violates constitutional rights and advocate for greater transparency and accountability in surveillance practices[3][4]. However, the combination of standing issues, judicial deference to national security, and procedural limitations has made it challenging for plaintiffs to successfully overturn or amend these laws in court.
In summary, while many argue that government surveillance under the FISA Amendments Act is unconstitutional, courts have upheld its provisions primarily due to issues of standing, deference to national security interests, and limited judicial review mechanisms. The challenges to overturning the FISA Amendments Act are primarily hindered by compromises and powerful influence of national security interests.
The English summary: Mass monitoring everyone is not right, but that monitoring gives the power to prevent anyone from stopping the mass monitoring, so buzz off. Splendid power play.
Yes, I realize this post is akin to me saying: “Hey ‘Moderators,’ your power is no fair!” to the powers that be. Not even worth saying, other than getting counted as a fan of technology who is also wondering if the system could be improved in terms of human rights and long term human survival.
Read More
[1] https://www.aclu.org/press-releases/senate-passes-unconstitutional-spying-bill-and-grants-sweeping-immunity-phone
[2] https://www.cnn.com/2008/POLITICS/02/12/fisa.senate/
[3] https://www.reuters.com/article/us-usa-telecomms-immunity-idUSN1223400220080213/
[4] https://www.npr.org/2008/07/09/92383286/senate-oks-fisa-bill-immunity-for-telecom-firms
[5] https://www.politico.com/blogs/politico-now/2008/02/senate-passes-spy-bill-with-telecom-immunity-006143
[6] https://www.acludc.org/en/cases/re-proceedings-required-ss-702i-fisa-amendments-act-2008
[7] https://www.nyclu.org/court-cases/amnesty-v-clapper-challenging-fisa-amendments-act-2008
[8] https://www.aclu.org/documents/talking-points-fisa-amendments-act-2008
[9] https://en.wikipedia.org/wiki/FISA_of_1978_Amendments_Act_of_2008
[10] https://epic.org/foreign-intelligence-surveillance-court-fisc/
[11] https://www.congress.gov/bill/110th-congress/house-bill/6304
[12] https://www.fbi.gov/how-we-investigate/intelligence/foreign-intelligence-surveillance-act-fisa-and-section-702
[13] https://www.congress.gov/bill/110th-congress/house-bill/6304/text
[14] https://www.freedomforum.org/freedom-of-petition/the-right-to-ask-the-government-to-fix-a-wrong/
[15] https://constitution.findlaw.com/amendment1/first-amendment-freedom-of-association.html
[16] https://en.wikipedia.org/wiki/Right_to_petition_in_the_United_States
[17] https://law.justia.com/constitution/us/amendment-01/10-right-of-association.html
[18] https://firstamendment.mtsu.edu/article/freedom-of-petition/
[19] https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-freedom-of-association
[20] https://constitutioncenter.org/the-constitution/amendments/amendment-i/interpretations/267
[21] https://constitution.congress.gov/browse/essay/amdt1-8-1/ALDE_00013139/
[22] https://constitution.congress.gov/browse/essay/amdt1-10-2/ALDE_00000223/
[23] https://www.axios.com/2019/03/05/google-government-censorship-requests
[24] https://judiciary.house.gov/sites/evo-subsites/republicans-judiciary.house.gov/files/evo-media-document/Biden-WH-Censorship-Report-final.pdf
[25] https://law.justia.com/constitution/us/state-laws-held-unconstitutional.html
[26] https://law.justia.com/constitution/us/acts-of-congress-held-unconstitutional.html
[27] https://katibainstitute.org/what-does-it-mean-when-a-law-is-unconstitutional/
[28] https://study.com/academy/lesson/unconstitutional-definition-examples.html
[29] https://www.house.mn.gov/hrd/pubs/unconst.pdf
[30] https://constitution.congress.gov/browse/essay/amdt1-7-15-1/ALDE_00000771/
[31] https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/technology-and-the-law/mass-surveillance-is-dangerous-for-american-communities/
[32] https://www.justiceinitiative.org/voices/case-watch-step-forward-constitutional-challenge-nsa-surveillance
[33] https://rsf.org/en/worldwide-mass-surveillance-germany-s-intelligence-service-declared-unconstitutional-landmark
[34] https://www.echr.coe.int/documents/d/echr/fs_mass_surveillance_eng
[35] https://www.aclu.org/news/national-security/five-things-to-know-about-nsa-mass-surveillance-and-the-coming-fight-in-congress
[36] https://verfassungsblog.de/no-backdoor-for-mass-surveillance/
[37] https://en.wikipedia.org/wiki/Mass_surveillance
[38] https://www.tandfonline.com/doi/full/10.1080/24730580.2019.1698279
[39] https://teachdemocracy.org/images/pdf/gates/snowden_nsa.pdf
[40] https://www.whistleblowers.org/news/the-case-of-edward-snowden/
[41] https://fee.org/articles/6-things-we-know-about-the-cia-s-secret-mass-surveillance-program/
[42] https://www.bbc.com/news/world-us-canada-23123964
[43] https://www.eff.org/nsa-spying
[44] https://www.google.nl/policies/faq
[45] https://en.wikipedia.org/wiki/Mass_surveillance_in_the_United_States
[46] https://www.reuters.com/article/world/us-court-mass-surveillance-program-exposed-by-snowden-was-illegal-idUSKBN25T3CJ/
[47] https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/technology-and-the-law/mass-surveillance-is-dangerous-for-american-communities/