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I disagree with you, Mig, on account of the instrumentality of this bill to quash civil litigation. That is to remove from citizens a freedom to challenge (recourse) harms perpetrated by a state agent. Additionally, the bill contradicts individual liberties provided by the US constitution.

Characterizing the bill's provision as "amnesty" is accurate but imprecise in its analytic scope. Of course, the bill presupposes illegal telecom activity viz. extant statutes, here telecom consumer protections, provided by both state and federal laws governing commercial contracts, derived from US 4th Am., freedom from warrantless search and seizure.

Typically, officers of the law (police, legislators, attys) employ amnesty measures to exact temporary benefits of law enforcement. I would characterize "amnesty" historically as a prescriptive and descriptive function.

Amnesty periodically proffered to largely unidentified persons, e.g. tax scofflaws and draft dodgers, at liberty is how the state employs this mechanism primarily to create actionable info and to recover "losses" to social and financial coherence upon which lawfulness is premised. Amnesty effectively affirms extant law.

Conversely, the repeal of a law is perforce permanent amnesty, a law which corrects a codified error. The US congress is effectively repudiating extant law(s).

As for "retroactive prosecution": Is there such a thing? I think not. Investigation and detection of "illegal" activity is timeless insofar as prohibition of a behavior is codified. Even if that behavior is NOT codified, the default recourse to injury is litigation. Such is the dynamic of a social contract purportedly dedicated to jurisprudence and lawful arbitration.

But the bill prohibits future litigtion and indemnifies all defendants (corporate and individual) from current litigation. This bill implicates law suits dating from 2002, by my reckoning, whence the US Patriot Act et seq emended US Code re: any businesses' liability as respondents to procedural demands by court officers for confidential records. To my knowledge, court judgements in all cases have denied plaintiffs' standing or remedy to unwarranted searches on the basis of exclusive state interest in and undiscoverable knowledge of "national security."

Further, US Code does provide explicit limitations to arbitrary prosecution by time period (e.g. tax, murder evasion) or by indictment charge(s) (i.e. "double jeopardy"). It's my impression that limitations to arbitrary civil litigation (e.g. contracts, torts, class action) are variable, dependent on bench review of case law on standing. One would like to think that such restrictions contribute to rather than detract from rigorous defense of due process, the 5th Am. and the 14th Am. of the US Constitution.

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In other news, who here is aware of pending EU legistlation to require fingerprinting of foreign nationals?

 BRUSSELS, Belgium - European Union leaders want their nations to fingerprint all foreign visitors and take other new steps to keep out illegal immigrants as part of a sweeping security overhaul proposed Friday.

The measures are similar to those already in place in the United States, and have prompted concerns about privacy and the rights of those seeking refugee status in the EU. But EU leaders suggested security is paramount.
[...]
These would include fingerprinting and screening for all visitors who cross the bloc's borders and using a satellite system to keep out illegal immigrants.

The screening would apply to everyone: Those who need a visa to enter EU nations, such as visitors from most African nations, as well as those who do not, such as U.S. citizens.



Diversity is the key to economic and political evolution.
by Cat on Sun Jun 22nd, 2008 at 11:34:48 AM EST
[ Parent ]
who here is aware of pending EU legistlation to require fingerprinting of foreign nationals?

Shit, do we have to copy every bad idea the Americans come up with?

When the capital development of a country becomes a by-product of the activities of a casino, the job is likely to be ill-done. — John M. Keynes

by Carrie (migeru at eurotrib dot com) on Sun Jun 22nd, 2008 at 04:06:11 PM EST
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... the worst of them, you won't be forced to allow soccer players to pick up the ball and throw it forward.


I've been accused of being a Marxist, yet while Harpo's my favourite, it's Groucho I'm always quoting. Odd, that.
by BruceMcF (agila61 at netscape dot net) on Sun Jun 22nd, 2008 at 04:47:00 PM EST
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Like a friend of mine used to say in similar circumstances  "..only if it's dangerous or stupid."

I can swear there ain't no heaven but I pray there ain't no hell. _ Blood Sweat & Tears
by Gringo (stargazing camel at aoldotcom) on Sun Jun 22nd, 2008 at 11:30:55 PM EST
[ Parent ]
As for "retroactive prosecution": Is there such a thing? I think not. Investigation and detection of "illegal" activity is timeless insofar as prohibition of a behavior is codified. Even if that behavior is NOT codified, the default recourse to injury is litigation. Such is the dynamic of a social contract purportedly dedicated to jurisprudence and lawful arbitration.
One of the articles in the Universal Declaration on Human Rights covers that
Article 11.

(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

But you point out that this "telco immunity" affects civil litigation against the telecommunication companies, not possible criminal liability.

And on this note, I think constitutional protections are intended to protect citizens from the State, not from each other. It was the government that was in violation of the 4th amendment, not the telcos. The telcos may have been in violation of data protection laws if the US had any, or of their own privacy agreements entered into with their customers.

When the capital development of a country becomes a by-product of the activities of a casino, the job is likely to be ill-done. — John M. Keynes

by Carrie (migeru at eurotrib dot com) on Sun Jun 22nd, 2008 at 04:14:04 PM EST
[ Parent ]
I think constitutional protections are intended to protect citizens from the State, not from each other. It was the government that was in violation of the 4th amendment, not the telcos.

Protecting citizens from each other is the purpose of US Code (federal statutes) and states' criminal codes.

But if I were an atty and corporate counsel, I would indeed argue ;) that as a corporation is a "person" the state has abridged corp 4th Am. and due process "rights".

I'm not, and that complaint, XYZ Inc v. US, didn't get filed. AFAIK. (Search ACLU and epic.org, for example)

Besides 1st Am questions, blocked by evocation of federal "national security" perogatives, litigants have been unsuccessful demonstrating material harm, provoked by unreasonable search. That is the plaintiff, individual or corporate, must exhibit a loss which may be financial or corporal directly attributable to the undue process.

And what incentives are available to corporations to post revenue losses --as if consumer preference among suppliers existed and were actionable -- attributable to unreasonable US searches of its customers' transactions?

Diversity is the key to economic and political evolution.

by Cat on Thu Jun 26th, 2008 at 12:26:02 PM EST
[ Parent ]
There is federal statute governing seller unauthorized distribution of client service data, fines per instance. I don't have legal citations handy. So, really, the point of litigation and corp indemnification is not merely constitutional principles but cost avoidance. The FISA emendment wipes out existing recourse and telecom financial liability.

Diversity is the key to economic and political evolution.
by Cat on Thu Jun 26th, 2008 at 12:34:48 PM EST
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Here is an interesting summary of FISA, "Five Myths About the New Wiretapping Law" By Patrick Radden Keefe.

Myth No. 3: The courts will still review the telecom cases.

Perhaps most controversially, the bill effectively pardons the telecom giants that assisted the Bush administration in the warrantless wiretapping program. They will now be shielded from dozens of civil lawsuits brought against them after their involvement was exposed. House Democrats insist that the telecoms are not automatically getting off the hook. Instead, the companies must go before a federal judge. But here's the catch: For the suits against them to be "promptly dismissed," they must demonstrate to the judge not that what they did was legal but only that the White House told them to do it.

This is another bit of face-saving window dressing, and its essence is best captured in a breathtaking remark from Sen. Bond: "I'm not here to say that the government is always right. But when the government tells you to do something, I'm sure you would all agree ... that is something you need to do." That more or less sums it up--one part Nuremberg defense, the other part Nixon.



Diversity is the key to economic and political evolution.
by Cat on Fri Jun 27th, 2008 at 03:56:20 PM EST
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