Recent revelations about former Qwest chief executive Joe Nacchio's classified-information defense, which went unheard during his insider-trading trial, are feeding the furor over the government's warrantless-wiretapping program.
Nacchio alleges the National Security Agency asked Qwest to participate in a program the phone company thought was illegal more than six months before the Sept. 11, 2001, terrorist attacks, according to court documents unsealed at the request of The Denver Post.

Nacchio's claims could affect President Bush's controversial efforts to grant legal immunity to large telecommunications companies such as AT&T, which has been sued in connection with the surveillance program.

"The Nacchio materials suggesting that the NSA had sought telco cooperation even before 9/11 undermines the primary argument for letting the phone companies off the hook, which is the claim that they were simply acting in good faith to help the president fight the terrorists after 9/11," said Kevin Bankston, a staff attorney for the Electronic Frontier Foundation, a civil-liberties group.

"The fact that these materials suggest that cooperation with the program was tied to the award of certain government contracts also contradicts their (phone companies') claims that they were simply acting in good faith to help fight the terrorists when it appears that they may have been motivated by financial concerns instead," Bankston said.

Today I interviewed Cindy Cohn of the Electronic Frontier Foundation, the lead counsel in the pending litigation against AT&T, alleging that AT&T violated multiple federal laws by providing (without warrants) unfettered access for the Bush administration to all telephone and Internet data concerning its customers...
I found this interview extremely illuminating, and it reveals just how much misinformation is being disseminated by amnesty advocates.

I don't think it takes a lot of thought to wonder: "huh, the FISA law says that the exclusive means by which the Government can get information is either by a warrant or a short-term certification from the Attorney General in an emergency situation. Huh - do either of these two things justify ongoing wholesale surveillance of all of our customers for five years and counting?"

The answer to that has to be "no." I don't think you even need a law degree to figure that one out.

WASHINGTON, Nov. 16 — A federal appeals court said today that secrecy laws forced it to exclude critical evidence about the National Security Agency’s domestic eavesdropping program from being used by an Islamic charity in a lawsuit even though the mere existence of the program could no longer be considered a “state secret.”

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A lawyer for the group leading that part of the lawsuit, the Electronic Frontier Foundation, said in an interview that he was heartened by the appeals court’s clear rejection of the government’s claim everything involved in the eavesdropping program should be considered a state secret. That could bode well for the remaining piece of the case, said the lawyer, Kevin Bankston.

The Federal Communications Commission will not pursue an investigation of telecoms cooperation with the National Security Agencys wiretapping activities. According to Director of National Intelligence Mike McConnell, in Washington, such a probe would "pose an unnecessary risk of damage to national security."

In a related action involving the controversy, the Electric Frontier Foundation, based in San Francisco, announced on Oct. 5 it had hired two veteran Washington lobbyists to try to block amnesty for telecoms collaborating with the NSAs warrantless spying activities. The EFF is lead counsel in Hepting v. AT&T, one of many lawsuits aiming to hold telecommunications companies accountable for allegedly violating their customers privacy rights.

On Sept. 27, the EFF filed a lawsuit against the Department of Justice, demanding any records of a telecom industry lobbying campaign to block lawsuits over their compliance with illegal electronic surveillance.

"The White House is publicly calling for immunity for the telecoms, while a recent Newsweek article detailed a secretive lobbying campaign to block the lawsuits," Marcia Hofmann, an EFF attorney, said in a statement. "If there are back room deals going on at the Department of Justice, then Americans need to know about them now, before Congress passes any law that gets the telecom companies off the hook."

Tuesday’s congressional hearing about Yahoo turning over information about two dissidents to the Chinese government got me all riled up — and not at Yahoo.

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But Congress should think hard about how it’s undermining civil rights here at home before getting all holier-than-thou on U.S. companies trying to figure out how to do business in China, a place where the government’s power can be both murky and threatening.

“I wish Congress would put the practices domestically under the same magnifying glass,” said Danny O’Brien, international outreach coordinator at Electronic Frontier Foundation, a San Francisco group that has advocated for privacy rights around the globe. “This is an inconsistent position.”

The Senate approved a major revision of the 30-year-old law regulating the government's electronic surveillance program Wednesday, ending a debate that threatened to freeze intelligence operations.

The bill, which President Bush promised to sign, is designed to end at least 40 lawsuits against telecommunication companies that have aided the government.

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Opponents said the bill codifies an unconstitutional program. The American Civil Liberties Union and the Electronic Frontier Foundation vowed a court challenge.

"This program broke the law, and this president broke the law," said Sen. Russ Feingold, D-Wis., a leading opponent. Senators will regret they passed the law if they learn more about the program, he said.

The Senate is expected to vote on a controversial measure to amend the Foreign Intelligence Surveillance Act tomorrow. The legislation would rewrite the nation’s surveillance laws and authorize the National Security Agency’s secret program of warrantless wiretapping. We speak with Mark Klein, a technician with AT&T for over twenty-two years. In 2006 Klein leaked internal AT&T documents that revealed the company had set up a secret room in its San Francisco office to give the National Security Agency access to its fiber optic internet cables.

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Mark Klein is also a witness in a lawsuit filed by the Electronic Frontier Foundation, which alleges AT&T illegally gave the National Security Agency access to its networks. Mark Klein joins us now from San Francisco, California.

Bowing to President Bush's demands, the Senate sent the White House a bill Wednesday overhauling bitterly disputed rules on secret government eavesdropping and shielding telecommunications companies from lawsuits complaining they helped the U.S. spy on Americans.

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The Electronic Frontier Foundation, a California civil rights organization, intends to challenge the constitutionality of the immunity provision.

The American Civil Liberties Union filed suit Thursday over a controversial wiretapping law, challenging the constitutionality of the expanded spy powers Congress granted to the president on Wednesday.

The federal lawsuit was filed with the court just hours after Bush signed the bill into law.

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The Electronic Frontier Foundation is expected to challenge the provision of the bill that gives retroactive amnesty to telecoms that are being sued for helping the government spy on Americans without warrants.

But the San Francisco-based online rights group also announced in a fund-raising letter on Thursday that it too would challenge the constitutionality of the bill's expanded spying powers. An EFF lawyer said the group was still developing the case and could not provide details of when or where the case would be filed.

In poring through the latest round of documents the FBI turned over to the Electronic Frontier Foundation about how the FBI legally plugs into the nation's telephone system, THREAT LEVEL discovered that the nation's secret spy court repeatedly questioned the FBI in 2005 and 2006 about whether the Bureau was exceeding its wiretap authority.

But there were other fine eavesdropping nuggets in those pages, including info on when the FBI learned to wiretap VOIP calls, how number portability messed with FBI taps, and a moment of candor from an FBI technician about how the FBI's wiretapping software could work with the NSA's warrantless wiretapping program.