Intellectual Property Law

It's official, John McCain still supports amnesty for telephone and internet companies that helped the Bush Administration target Americans for wiretapping for five years, without getting any court orders.

The confusion resulted from a tech policy discussion in New Haven, Connecticut Wednesday where a surrogate for presumptive Republican presidential nominee John McCain said that as president, McCain would require strict conditions for amnesty. If by 2009, Congress hasn't broken the current deadlock over whether to free the telecoms from the civil suits against them, McCain would want hearings, clear future rules and apologies from the telecoms before supporting amnesty,his surrogate said, making a big change in position from McCain's earlier votes in support of the provision.

Chuck Fish, a full-time volunteer campaign lawyer, gave the hypothetical answer in a panel at the Computers, Freedom and Privacy conference. His comments were remarkable, since in February, McCain voted against an amendment that would have stripped from a spying bill amnesty for telecoms that helped with the government's five-year warrantless wiretapping in volation of federal privacy laws.

On Friday, after the story was picked up by some big liberal blog, that change of course appears inoperative.

McCain's online outreach manager Patrick Hynes wrote THREAT LEVEL to say the story "incorrectly represented" McCain's position on freeing telecoms from the civil suits pending against them, saying the campaign regretted any confusion.

John McCain through his votes and statements has shown a commitment to winning the battle against Islamic fundamentalists whose quest is to destroy the United States.  John McCain believes that as part of this battle, companies who assist the government in good faith should not be punished, but he also believes that Congress must put forth clear guidelines for requesting the participation of private companies, provide proper Congressional oversight of any such participation and protect all Americans privacy. 

After careful and deliberate consideration, fact-finding, and exploration of options, John McCain has continued to support renewal of the Foreign Intelligence and Surveillance Act.  The granting of retroactive immunity supports the continuing efforts of participating companies yet should be done with explicit statements that this is not a blessing for future activities. 

While THREAT LEVEL doesn't like to nit-pick, it is important to note that the 1978 FISA law is not expiring. Passed in the wake of massive invasive government surveillance abuses, that law explicitly requires particularized court orders for any foreign intelligence wiretaps inside the United States that could snag an American's communications.

The Protect America Act, passed last August after much fear mongering, did expire in February, but the orders under that authority remain in effect for a year after they were approved by a judge. That law temporarily gave the government broad powers to order domestic phone and internet companies to wiretap international communications which Americans are part of, and gave the nation's secret spying court little grounds to block them.

Congress is currently deadlocked over whether to grant immunity to the telecoms, though both the House and Senate agree that the government should have the power to order American telecoms to broadly spy on international communications, including ones that involve Americans, without having to name particular targets.

• McCain Campaign: Telecom Amnesty Requires Hearings and Apologies
• FBI Recorded 27 Million FISA 'Sessions' in 2006
• Secret Spy Ruling Contaminates Debate
• Senate Approves Telco Amnesty, Legalizes Bush's Secret Spy Program
• In Spy Debate, Top Spy Lobbies, Attorney General Misleads
• Arlen Specter Demanding Probe Of 'Spygate'