The uproar over the white-hot Democratic presidential race isn’t the only political game in town as a congressman and a Fortune 500 company from San Antonio brace for a potential donnybrook. After Democrats in the House of Representatives failed to pass a temporary extension of the Foreign Intelligence Surveillance Act last week, they adjourned without taking any further action. President Bush angrily played the fear card again before leaving for his state visit to Africa, claiming “as terrorists change their tactics to avoid our surveillance, we may not have the tools we need to continue tracking them.”
The sticking point for Democrats in the House was a provision in the FISA renewal approved by the Senate granting immunity to telecommunications companies that facilitated government programs to wiretap U.S. computer and phone lines without obtaining warrants from the secret FISA court set up to oversee such activities. Dozens of lawsuits are already pending against the telecom giants — including San Antonio-based AT&T — charging they illegally provided customer data to U.S. intelligence officials.
The proposed 21-day FISA extension contained no immunity provision but was designed to give the House and Senate time to come up with a compromise version. However, the White House’s threat to veto the brief extension doomed the measure, which failed by 191-229.
Representative Charlie Gonzalez (D-San Antonio) voted for the extension but says he is troubled by the immunity provision in the Senate bill that takes away a cause of action that existed when the suits were filed and deprives plaintiffs of the opportunity to have their cases tried on the merits.
“I’ve never been for that,” he tells the Current, suggesting that a different standard of behavior should not be carved out for corporations. “We ask individuals to be accountable for their actions — they’re not granted immunity ... When you have liability, it produces responsibility.”
Bush’s insistence that the only acceptable FISA renewal must contain telecom immunity seems curious. Does sparing a few large corporations civil liabilities that could total millions of dollars somehow trump national security? A more likely scenario is the administration’s fear these lawsuits would force disclosure of the extent of illegal government spying in open court, a move that could shatter claims that such surveillance was limited to contacts with foreign terrorists.
Evidence suggests that fear is well-founded. In 2006, the Electronic Frontier Foundation, a civil-liberties group, filed a lawsuit alleging AT&T was collaborating with the National Security Agency to track the domestic and foreign communications of millions of Americans. Later that year, Vaughn R. Walker, chief judge of the Federal District Court for the Northern District of California, issued a blistering 72-page ruling rejecting a Justice Department motion to dismiss the lawsuit because it could expose “state secrets.”
In a separate motion, AT&T had also sought dismissal of the suit by arguing that its relationship with the government made it immune from prosecution. Judge Walker made short work of that motion as well. The EFF lawsuit is especially troubling to AT&T because it stems from charges by former company technician Mark Klein, who provided details of a secret AT&T “spy room” equipped for the National Security Agency to “vacuum-search” customer communications without their knowledge.
Klein’s allegations first surfaced in a Wired magazine article that not only revealed the location of the secret spy office (Room 641A of the SBC Building at 611 Folsom Street, San Francisco) but provided details of how the data monitoring was conducted, complete with schematics. Despite repeated official pronouncements that surveillance was limited to contacts with foreign terrorists, Klein’s report suggested the target was all communications, foreign and domestic.
If such illegal activity did indeed take place, that information won’t easily see the light of day. In response to a question from a Congressional panel, then-Attorney General Alberto Gonzales revealed that President Bush had personally blocked a Justice Department investigation into the NSA program by denying the investigators the necessary clearance to gain access to the records. The proposed FISA-renewal immunity provisions would enshrine this attempted cover-up as a matter of law.
Some in Congress — mostly Democrats, but a few Republicans as well — are determined to see that doesn’t happen. But others — most notably Senator Jay Rockefeller (D-WV), chair of the Senate Intelligence Committee — argue the immunity provisions are essential even if the Bush administration refuses to identify the companies involved. He says the telecoms were “pushed by the government, compelled by the government, required by the government” to perform these illegal acts and thus are entitled to immunity.
For AT&T, this debate come at a particularly inconvenient time as renewed interest is focused on the issue of Network Neutrality, seen by advocates as the guiding principle of a free and open internet. Some internet service providers are fighting the concept, including AT&T, Verizon, Comcast, and Time Warner — the nation’s largest telephone and cable companies — who decided the current open flow of information online doesn’t generate the gigantic profits they could attain if only they controlled speed and access for internet users. Their plan is to tax content providers to guarantee speedy delivery of their data. They want to discriminate in favor of their own search engines, internet phone services, and streaming video while slowing down or blocking competitors.
But advocates say the real loss with the demise of Net Neutrality would be the diminution of economic innovation, democratic participation, and free speech online. Even a cursory examination of AT&T’s recent history makes giving them greater authority over the internet a dicey proposition. When Pearl Jam’s performance at Lollapalooza in Chicago last year was webcast by AT&T, the company employed a brief delay to bleep out any profanity or nudity. However, when the band segued into a rendition of Pink Floyd’s “Another Brick in the Wall,” they modified the words to say “George Bush, leave this world alone” and “George Bush, find yourself another home.” AT&T censors cut the lines from the webcast.
To be fair, it should be noted that AT&T later apologized for censoring Pearl Jam, but this and other incidents demonstrate why granting the corporation even more power over the internet might not be that great an idea even without the dire financial implications.
The Markey Amendment was the first legislative attempt in the House to put Net Neutrality in the law. In 2006, the amendment was voted down by the House Energy and Commerce Committee. Among five Democrats siding with the then-majority Republicans was our own Representative Charlie Gonzalez.
Ed Markey (D-MA) is now the chair of that committee. With Representative Chip Pickering (R-MS), he introduced a new Internet Freedom Preservation Act (H-5353) last week. Net Neutrality has been endorsed by a range of groups, from the American Library Association and the Christian Coalition to Ebay, Google, Intel, Microsoft, Amazon.com and the editorial board of The New York Times, among many others.
But Gonzalez still has reservations, and listening to him expound on the issue provides an in-depth preview of the pitched battle to come in Congress and across the country as the Markey-Pickering bill advances.
“I haven’t had a chance to read it,” said Gonzalez. “But I’ve also heard that it could result in adopting policies that could prove detrimental to the build-out of more broadband capacity.”
Gonzalez even questions the very concept of Net Neutrality. “We need to define what people mean by that term … there’s much more to it than at first blush saying ‘Have the Internet always be free.’ That’s not the issue. Two, it will be conditionally open to everyone. I don’t think that’s the issue, either. So it’s not as simple a concept as people have made it out to be.”
Obviously, Gonzalez has been around the block a time or two, and recognizes the difficulty inherent in advocating for a giant like AT&T. “I understand they’re not everyone’s favorites, as opposed to someone like Google,” he says almost ruefully, before trying to cut the opposition down to size: “Google doesn’t give you anything for free. When you use their service, you’re basically agreeing to let Google track your activities so that they can figure out what your consumer profile is like in order for them to be able to sell ads.”
The antipathy for Google expressed by the Congressman from the district where AT&T has its headquarters is perhaps understandable. After many decades in business, with expensive infrastructure and employment centers all across the country, AT&T is a corporate giant valued at over $240 billion. But they have to look askance at Google, which in nine years has surged to a value of $143 billion. In a very real sense, this heated debate is about future wealth from the internet. Expect much of the discussion to dance around that topic and focus instead on issues like rogue users who are ruining it for the rest of us. Gonzalez has a ready example at hand.
“What you have now, because of video, which uses so much bandwidth, you have people that are downloading so much that it is now interfering with the ability of a network to provide faster service to a greater number of people,” he says. “Does Net Neutrality mean that someone cannot ensure that all users get the speed they’re paying for and not having five percent of the users basically use so much bandwidth that they impede the ability of the other 95 percent?”
That both sides are digging in for a long siege is readily apparent, even as the issues are still being framed. “I know that the internet user and the blogger really believe that their interest is being promoted in this particular fight by the applicators, the search engines, and the content people — and it’s not,” Gonzalez insists. “This is really a business debate among the biggest players of the internet — Yahoo, AT&T, Verizon, Google, Microsoft. If you really believe the government should interfere in that particular debate among those giants to give someone an advantage, then I don’t know. This is crazy.”
Every anti-regulation argument eventually comes around to extolling the virtue of the marketplace, and this one is no exception. “The consumer’s point of view is what we ought to be concerned about, and once we start doing that, we’ll find out that the marketplace and the consumer will determine at what price and how it’s delivered,” says Gonzalez.
Finally, he addresses the charge he knows will be leveled at him with increasing rancor as this war grinds on. “People keep saying, ‘Charlie, you represent AT&T.’ I don’t represent AT&T — they’re here in my district and I do want to make sure they prosper. But I’m not with AT&T on the Foreign Intelligence Surveillance Act.”
It is true that AT&T has been a loyal source of campaign funds during Gonzalez’s career, but contributors associated with the telecom giant rank third behind the USAA insurance group and trial lawyers on his campaign-finance records, according to the opensecrets.org website of the Center for Responsive Politics. Listening to Gonzalez expound on these arguments calls to mind the years he spent on the bench during his time as a district judge. Still, it is hard to imagine Henry B. carrying water for AT&T.
“When the networks are wrong, I think you call them on it,” Gonzalez sums up, adding, “But when other competitors are basically just trying to gain some sort of an advantage from what they perceive as a future threat, that’s a different matter.”
Craig Aaron of Save the Internet takes a different view. “Net Neutrality means no discrimination. It prevents the phone and cable companies from speeding up or slowing down websites and services based on their source, ownership, or destination,” he says. “The Markey-Pickering bill would bring the Communications Act into the 21st century, by making sure the fundamental protections that have been part of the internet since its inception apply to broadband services. It would also mandate public hearings across the country.”
So the battle is joined — or soon will be. In an interesting twist, Congressman Gonzalez has enthusiastically endorsed Senator Barack Obama for president. During a visit to Google last November, Obama said, “I will take a back seat to no one in my commitment to network neutrality. The internet is the most open network in history. We have to keep it that way.”
Stay logged on. This could get interesting. •
Elaine Wolff contributed to the reporting of this story.