A Public Private Partnership We Can All Do Without

IMHO, we have two parties who have already been working in a PPP:
a) one Public (Executive Branch of the Federal Government); and
b) one Private (AT&T and Verizon, the two largest telecom firms in the US, both heavily engaged at all levels of government).

These two halves of a partnership have each done much to earn a high level of distrust and skepticism based on a history of secrecy and abuse of political power. But we need both of these institutions and neither is going away anytime soon. So we have to find a way to get them to work more for the nation and less for themselves.

So forgive me when I look at this situation with a somewhat jaundiced eye. Having the large telecoms open up their networks and their customer data files to a federal government in a climate of national fear is dangerous, to say the least. That the public partner, sworn to uphold the Constitution, has shown consistent disdain for the rule of law is a red flag. In sum, I believe this is a Public Private Partnership that we can do without.

In this particular case, release of data without a warrant has already gone on for over five years, and has resulted in an erosion of constitutional protections that are the foundation of our way of life - in short, the cure appears far worse than the disease. This reminds me of those cures from the Dark Ages, when the patient would die if treated, but had better odds of getting well if left alone. Scared of the doctor? Prefer to stay out of the hospital? Me too.

On this site, I try to tie together complex issues, shine the light on the facts and encourage a rational discussion. You get a little opinion along with that. So let's start with some facts and definitions and see where the analysis takes us.

FOURTH AMENDMENT [U.S. Constitution] - 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

Fourth Amendment to the US Constitution - Besides this Wikipedia reference, a great start, I recommend the more legal site FindLaw, which includes the actual text, and the 'Lectric Law Library's Legal Lexicon (no kidding). When it comes to searching and monitoring citizens and their things, the authors of the Constitution had very recent examples of government run amok, and put their antidote to government abuse of power down in writing. All of the argument about what the government can and can't do in monitoring US citizens starts here.

The oath or affirmation of office of the President of the United States was established in the United States Constitution and is mandatory for a President upon beginning a term of office. The wording is prescribed by the Constitution (Article II, Section 1, Clause 8), as follows:
"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." Oath of Office of the President of the United States

Again, back to the Constitution, this time, Article II, Sec. 1, Clause 8, on what we expect from our president. As far as I'm concerned, this oath should be mounted on the president's bathroom wall over the toilet, next to the bed so it's the first thing the president sees in the morning and the last thing the president sees at night, and mounted permanently under glass at the president's desk in the Oval Office so it's staring at the president all day. Hell, let's make it a law to tattoo it on the president's belly, if we have to. This is the whole point - this is why we elect a president and put him/her in office; it's a solemn oath sworn on the Bible, a promise to the American people. We're in charge, we just let the president run things for a term, according to the rules we all agreed upon. The president should be able to close his/her eyes and see the Constitution - he/she swore an oath, for Pete's Sake!

OK, that feels better to let it all out. Maybe I'm just naive and I don't understand power, maybe that's it. Here's a little excerpt of a Wikipedia article about the Office of Vice President - an oath that guides someone who clearly does understand power ... a little too much, I'm afraid...

Unlike the president, the Constitution does not specify an oath of office for the vice president. Several variants of the oath have been used since 1789; the current form, which is also recited by Senators, Representatives and other government officers, has been used since 1884:
"I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter." Oath of Office of Vice President, Senators, Representatives, and Other Government Officers

Whoops! There it is again - the Constitution - every time you turn around, there we are, the people expecting our elected officials and representatives in government to swear an oath to "Support and defend the Constitution of the United States". But too many US citizens, wrapped up in their busy lives, seem to forget what that oath means. All those who feel that our VP Dick Cheney is bearing "true faith and allegiance to the same" please raise your hands...

I thought so. Anyway, this is how I see it. The Constitution rules...unambiguously.

But then we hear from our leaders that we're under attack, or at least, we were that one terrible day, who can forget 9/11? (queue Rudy Guiliani)..I can't, never will, and I hate that. But now, we also hear that our "way of life" is under constant attack, we're told to be afraid...many refer to a Global War on Terror or GWOT.

Now I'm no weak-kneed Willie, no shrinking violet, but I do have a pretty good BS detector. Even I can tell that this whole "We're at war so normal rules don't apply" is a load of crap - it's just so convenient, especially when it's used by power-hungry imperialists to justify suspending allegiance to the Constitution! And so as a nation, we've actually come to this .....

Foreign Intelligence Surveillance Act (FISA) - besides this Wikipedia reference, which is very comprehensive, I encourage you to check out this link on FISA at the electronic Privacy Information Center (EPIC). This law was originally passed to curb abuses by our government back in the 1970s. And it's been amended a few times recently, to update it to accommodate the internet, but also to loosen up the reins of government. But it turns out, it doesn't really matter, because many in this administration don't think they have to follow it anyway! Which leads us to the nut of the issue, at least as far as it concerns the telecom policy wonks among us.

Telecommunications Immunity - in a nutshell, this provision in the FISA bill rewrite has become a bone of contention and a focal point for the debate on the bill. The provision in the Senate Intelligence Committee version of the FISA bill makes telecom companies that cooperated with warrantless administration requests for phone taps and customer data retroactively immune from prosecution (they are currently under threat by multiple lawsuits for that activity). The House version of the rewrite does not include an Immunity provision, nor does the Senate Judiciary Committee version. For more on this topic, please see these recent posts on MetroNetIQ ...
Nov 19: A Wicked Wind Blows Through the Senate, The Shankill Butchers Ride Tonight
Nov 12: Rule of Law v. Rule of Da Man - I vote for Rule of Law
Oct 31: What Would Woodward and Bernstein Do?
Oct 30: Tangled Webs, Wicked Ways
Oct 29: Laura Scher Kicks Some Assets
Oct 29: A Long, Not So Gentle Backslide: Ersatz Oversight
Oct 25: The Road to 1984, paved with good intentions
Oct 23: Getting More Interesting
Oct 22: Where There's Smoke ... Part V Summing it Up
Oct 21: Where There's Smoke ... Part IV How Close is Too Close?

I really think that history will show this episode as a bigger deal than we are giving it credit for today. The current events this week were dramatic.

Current Events

12/17

I'm no fan of one of our most senior Democrats, Sen. Harry Reid. And I'm getting less and less so each day. I have to admit, I'm dumbfounded how a guy like this got into such a high seat of power in the first place, but we seem to be getting better and better at electing worse and worse leaders here in the US. Something is terribly amiss, if we only look to Sen. Reid for evidence. He's a bundle of contradictions, apparently compromised in some way, and about as uninspiring a leader as you could find. Unless, that is, you stand him up against the current president and the current speaker of the house, when he starts to look about par for the course...

In this telecom amnesty issue, Reid has seemed more Republican than Democratic, and he's the freakin' Senate Majority Leader!! Still, I consider this a note of progress, when he suggested that all the senators should have access to the full information so that they can vote with their eyes open. What a thought. See Senator Reid seeks More Information for a warm-up to the dramatic events of this week.

The bill was brought to the floor (over the objections and hold of Sen. Dodd, a fellow Dem, BTW), debated and a vote of cloture was approved by a wide margin, which is a means of stopping a filibuster by limiting the allowed time for debate (approved by many Dems as well!). But in the end, the serious intent of opponents, principally Sen. Dodd, with strong support from Sens. Feingold and Kennedy, threatened a long fight, and with the holidays looming and a desire to get other bills passed, Sen. Reid folded and postponed action on the bill until January (see
Huffington Post: Surveillance Bill Delayed Until 2008).

The YouTube clip below provides a good summary, which may be helpful at this point to put all the details in context.

Even better, listen to this recap straight from the horses mouth, in this clip of Senator Dodd on Countdown from Dec 17.

12/18

OK, now the serious analysis of what went down at the Senate on Monday starts to unfold. First, spend some time reading this review on Salon by Glen Greenwald - Anatomy and significance of Monday's FISA victory. He's an astute attorney and passionate about the Constitution. He provides a comprehensive review and analysis, but check especially the comments - several touch on the potential threat of unchecked surveillance in the age of the internet, when the actual technology exists to enable some of the worst of the 1984 nightmare scenarios.

And Glenn Greenwald brings up another aspect of the battle that the Post seems blissfully unaware of, and that is about how the whole notion of one man taking a stand on this issue came to pass. I first asked Dodd in early October on Air America if he would commit to filibuster retroactive telecom immunity, and he said at the time "Well, may have to do that....Hope it doesn't come to that."

But it did. And on October 18, when the deal that Jello Jay Rockefeller and Dick Cheney made to give the telecoms immunity in exchange for...well, virtually nothing... was announced, an outcry rose up on the liberal blogs. Jane Hamsher in Why Did Reid Pull the Telecom Bill?

I highly recommend this post - It's hard to beat this kind of in-depth analysis, and the whole process makes more sense when you read this insider account. This really was a case of liberal bloggers using the internet to first stimulate Senator Dodd to take a filibuster strategy seriously (he was on the edge anyway) and then putting pressure on the Senate leadership to raise the political risk of going along with the White House. For a change, we were actually participating in the process, rather than reading about a defeat ex post facto. This is an example of power from the edges coming into a traditional standoff and winning, at least for a day.

12/19

With a little time to digest this drama, the NY Times weighs in with an editorial, Bad Bill Now, Bad Bill Later that is well worth reading.

And for a look ahead, try this feature on the role of Sen. Russ Feingold and his view of what lays ahead. Either Feingold or Dodd would get my vote for Majority Leader.

In summary, this is one of my longest posts, but I feel it's important to make things as clear as I can.

The potential of the internet and everything I write about on this website is inevitably tied to its widespread acceptance as a safe and compelling technology. We need the assurance that only the government can give us: new technology, from broadband to video surveillance to RFID tracking devices, will not be used against the population.

Otherwise, who needs it? I see it as a negative if technological progress brings political regression. The events chronicled on this website today and in other recent posts raise the very real risk that the current administration and current industry leaders do not respect the awesome power of the internet and new digital technologies. I can only hope that the masses will continue to use this tool to communicate with each other, to mobilize their resources, to clarify and hone their message, and to overwhelm our elected officials with feedback that says in a very loud voice, "Respect the Constitution, or Suffer the Consequences." Maybe then they'll finally get the message that this is a democratic republic, not a monarchy or dictatorship. The popular will must prevail.

With a new year about to begin, this is an especially appropriate message for our leaders to hear. Let's hope they buy a clue and get focused on what's important, and soon.