From today’s Washington Post, “Tales from the Cellphone Tour,” an informative and entertaining Business Section article about  Cyriac Roeding, a mobile technology expert who traveled the world to see how people in other cultures use their cell phones:

In South Africa, personal-injury lawyers have an infomercial television show that tells viewers to text the show and within 48 hours a lawyer will call.

Texting is big worldwide. And some poorer countries may never develop landline technology, jumping right into the mobile technology.

The FISA Amendments Act, H.R. 6304, signed into law in July is beginning to work its intended effect on lawsuits against the telecommunication companies that assisted in government monitoring of foreign electronic communications after the terrorist attacks of September 11, 2001. The legislation provided retroactive civil immunity to the telecoms, provided they could demonstrate they were acting on instruction from federal authorities.

Today, the 9th U.S. Circuit Court of Appeals sent the most prominent of the anti-telecom lawsuits, the class-action Hepting v. AT&T, back to district court. According to a report in Wired, the order simply stated:

In light of the FISA Amendments Act of 2008, Pub. L. No. 10-261, we remand this case to the district court. We retain jurisdiction over any further appeals.

Presumably now AT&T will provide the needed documentation and District Judge Vaughn Walker will dismiss the lawsuit.

As Hans Bader of the Competitive Enterprise Institute discusses today at the OpenMarkets.org blog, the granting of retroactive civil immunity is clearly constitutional. It’s also a matter of good public policy: Punishing private companies for legally assisting in surveillance of America’s enemies would chill further assistance. And it’s certainly not a good idea to reward people — in this case, trial lawyers, privacy absolutists and leftist opponents of a strong national defense — who pursue policy disagreements in the courts, attacking private enterprise in the process.

Previous posts here.

The Heritage Foundation hosted FCC Commissioner Robert McDowell today at the weekly Blogger’s Luncheon, ostensibly to apologize for the FCC rapping Comcast on the knuckles, all in the name of Net Neutrality. Commissioner Deborah Taylor Tate joined Commissioner McDowell in voting against the majority in demonizing Comcast, as they saw that there was no evidence that Comcast actually did anything wrong. For those of you who have better things to do on a summer day than pay attention to the FCC, here’s a quick and dirty recap of the issue: Comcast network managers spotted a huge spike in bandwidth during a period of peak Internet usage, tracing it to kids downloading hundreds of megabytes of movies and music from BitTorrent, a media downloading site. Acting as traffic cops, Comcast decided to slow down the flow of bits from BitTorrent in favor of traffic from other applications and sites that are more dependant upon the speedy flow of bits, such as VoIP.

In the words of Net Neutrality pundits, they’ve committed the sin of Internet Discrimination. It would seem as if the FCC agrees as well. In a series of public hearings a la traveling road show, Comcast was held up for the masses to pelt them with rocks and garbage while yelling “burn the witch.” In a turn worthy of John Cleese and Eric Idle, the FCC on August 1 decided to do just that, and ordered Comcast to stop impeding traffic on the Internet and make transparent their policies to their customers, lest they be whacked with fines. Okay, maybe it wasn’t a burning per se, more like an uncomfortable stay in the sauna, but the intent was there.

But what did Comcast do to deserve this punishment? They violated the FCC’s Broadband Policy Principles. Let me reiterate the last part: PRINCIPLES. Not laws, not regulations, not rules, but principles (See ‘em here). They were developed with no public hearing, no notice of rule making, no due process. Legally speaking, they’re most likely unenforceable. The sad part is that Chairman Martin yelled “witch,” too.

But Comcast sinned, did they not? Phooey. In reality, they’ve practiced the virtue of Responsible Network Management. In their role as a traffic cop on their stretch of the Information Superhighway, they saw a bandwidth hog that would’ve backed up rush-hour traffic and they took it out of the HOV lane.

Commissioner McDowell said that this will be very easy for Comcast to appeal, as the FCC has no rules in place for this, thus no authority to enforce anything. Citing the “Brand X” Supreme Court Decision (stating that cable Internet companies provide “information services” governed by Title I of the Communications Act and are not “telecommunications services” under Title II), the cable companies are under no obligation to treat all traffic equally. That’s the law.

Talk to anyone who knows anything about network management and they’ll tell you that the Internet is ALL ABOUT discrimination – choosing which packet needs priority over another. For instance, it’s more important that VoIP packets get priority over a packet with part of the best sports clip ever filmed because a VoIP call requires complete synchronicity lest confusion, echoing and dead silence ruin the call. If my sport clip packet is delayed because of your VoIP packet got priority, the clip may download in 12 seconds instead of 10. That’s something I can live with.

But what if this is some kind of nefarious plot from Comcast to slow down the Internet sites that compete with them? Commissioner McDowell says to check out the Sherman Antitrust Act and the Clayton Act as your remedy. Tried and tested, it’s been around since 1890 and is reasonably sure to have the most evil of corporate malfeasors quaking in their Bruno Magli wingtips as soon as they see the summons.

Maybe in the end, the Comcast decision will be a good thing – if upheld, it’ll show Congress that the process works and the FCC is protecting the interests of the Internet consumer, and there’s no need for intrusive legislation. I suggested this to Commissioner McDowell, and he told me in so many words to go and click my ruby heels together (in a polite way, of course). “Appeasement doesn’t work,” were his exact words. Ah, well.

A good friend, Scott Hennen, launches his new radio station today from Fargo, North Dakota: “AM 1100, The Flag,” WZFG-AM 1100, broadcasting at 50,000 daytime watts, which goes a long way in the Upper Midwest, Bismarck to St. Cloud and beyond. Programming is conservative talk, with Rush, Hannity, and Mark Levin. (Scott has substituted on Hannity’s national program.)

Scott opens his own, new program this morning with Republican presidential candidate Sen. John McCain. On the list of topics: Energy.

Good luck, Scott!

Politico today reports about congressional debate over a federal media shield law. The Free Flow of Information Act would give journalists — however they’re defined — legal protection so they would not be forced to reveal their sources. From “Shield law faces hurdles in Congress“:

When lawmakers see journalists stalking the halls of the Capitol, they often make a dive for the nearest office.

But things were different two weeks ago, when several lawmakers welcomed not one but a dozen journalists into their offices for private legislative strategy sessions.

The crew of journalists was making the rounds on Capitol Hill, lobbying for a national shield law to protect them and their sources from legal prosecution.

We want names. Who made up this crew?

We’d heard from friends on the Hill that some reporters and editors who cover members of Congress, i.e., journalists with the power to portray Senators and Representatives in favorable or unfavorable light, have also been unambiguous advocates of the media shield legislation. We haven’t seen this abandonment of impartiality noted elsewhere, so good for Politico’s Lisa Lerer for spotting the angle.

Perhaps additional reporting is warranted. We ask: Are these reporter/advocates registered lobbyists? Do they file lobbying reports? Do they divulge their advocacy in their reports, on the editorial pages?

P.S. In today’s article the issue is yet again framed as journalists versus national security. As we’ve noted before, that’s only part of the story. Business has serious concerns that a too-broadly written media shield  will protect the improper disclosure of trade secrets, personnel and medical records, and other materials for which being disclosed serves no public interest.

President Bush signed H.R. 6304, the FISA Amendments Act, into law this afternoon in the Rose Garden. His remarks are here.

An accurate and quick summary from CQ Politics.

 With more and more news accounts again today misleadingly referring to “domestic spying program,” it’s worth turning, again, to Andrew C. McCarthy, a former federal prosecutor for the real history and legal context to the FISA debate. He notes that federal courts have consistently held that presidents maintained constitutional authority to conduct warrantless monitoring of hostile foreign agents, and both President Carter and President Clinton operated with that authority. And again, the program is of foreign surveillance.

From “Finally, a Surveillance Pass“:

The Constitution permits warrantless searches in exigencies far less consequential than protecting the nation against foreign attack. Indeed, highly intrusive searches of not only property (including computers with stored email) but also of American citizens crossing our borders have long been routine. Moreover, in marked contrast to Watergate era domestic spying abuses, the Bush administration briefed the relevant congressional leaders of both parties throughout the NSA program’s duration.

None of that mattered to privacy extremists and anti-Bush activists. Once the program was exposed, they slandered a vital effort to safeguard the nation as a “domestic spying” regime that targeted ordinary, law-abiding Americans. Their allies in Congress didn’t dare try to shut the program down, though, because they well knew those ordinary, law-abiding Americans — Americans who understood that 9/11 happened precisely because overseas terror masters used today’s communications networks to guide the activities of jihadists they’d embedded in our midst — want our intelligence community to conduct aggressive surveillance.

That, however, did not chagrin opponents. They did what they always do when democratic means are unpromising: they marched into court. And when suing the government proved frustrating because of standing requirements and state-secrets restrictions, they simply sued the telecoms.

Read the whole thing.

Reaction and excerpts from statements and news releases on the Senate passage Wednesday of H.R. 6304, the FISA Amendments Act.

• President Bush’s statement, “President Bush Pleased by Passage of FISA Reform Legislation“: “This bill will help our intelligence professionals learn who the terrorists are talking to, what they’re saying, and what they’re planning. It will ensure that those companies whose assistance is necessary to protect the country will, themselves, be protected from lawsuits for past or future cooperation with the government. It will uphold our most solemn obligation as officials of the federal government to protect the American people.”

• Sen. Jay Rockefeller news release, “Rockefeller Calls Final Pasage of New FISA Law Critical for National Security“: “Far too often, national security issues have been sidelined or delayed because of accusations and attempts to score political points. That’s what makes today so remarkable. Both sides have come together for the sake of national security and passed a bill that will modernize the nation’s surveillance laws so that they are effective and relevant in the 21st Century.

• Sen. Kit Bond news release, “Bond hails Senate passage of surveillance bill“:  Bond praised his colleagues for rejecting the misinformation spread by left-wing fringe groups like Moveon.org and instead putting our intelligence community back in the business of listening in on foreign terrorist in foreign countries.  Before the final vote, the Senate again rejected attempts to kill the terrorist tracking program by stripping civil liability protection for telecommunications providers.  Bond stressed that it is only right to give these patriotic companies who assisted the government in the aftermath of the 9-11 attacks protection from frivolous law suits.  Also, civil liability protection is critical to the future cooperation of our private partners, without whom the terrorist surveillance program could not operate.

• ACLU news release, “Senate Passes Unconstitutional Spying Bill And Grants Sweeping Immunity To Phone Companies“: “This fight is not over. We intend to challenge this bill as soon as President Bush signs it into law,” said Jameel Jaffer, Director of the ACLU National Security Project. “The bill allows the warrantless and dragnet surveillance of Americans’ international telephone and email communications. It plainly violates the Fourth Amendment.” 

• Electronic Frontier Foundation news release, “Senate Joins House in Caving to White House Immunity Demands…Telecoms Let Off the Hook for Illegal Spying - For Now”: “”We thank those senators who courageously opposed telecom immunity and vow to them, and to the American people, that the fight for accountability over the president’s illegal surveillance is not over,” said EFF Senior Staff Attorney Kurt Opsahl. “Even though Congress has failed to protect the privacy of Americans and uphold the rule of law, we will not abandon our defense of liberty. We will fight this unconstitutional grant of immunity in the courtroom and in the Congress, requesting repeal of the immunity in the next session, while seeking justice from the Judiciary. Nor can the lawless officials who approved this massive violation of Americans’ rights rest easy, for we will file a new suit against the government and challenge warrantless wiretapping, past, present and future.”

In the FISA debate, Sen. Orrin Hatch (R-UT) has been a clear and consistent speaker on the importance of providing immunity to telecommunications companies that assisted in surveillance of foreign communications. His remarks today on the Senate floor made the case in as straight-forward of way as we’ve seen, and he also punched holes in the more conspiratorial arguments that comes from the left.

From his prepared remarks:

It’s very simple - Congress should not condone oversight through litigation. The lawsuits seize on the President’s brief comments about the existence of a limited program to go on a fishing expedition of NSA activities. But this is really worse than a fishing expedition; this is draining the Loch Ness to find a monster. Sometimes what you are looking for just doesn’t exist. Yet we consistently hear as justification for the apparent paranoia that some wiretaps were warrantless. But lest we forget, the 4th Amendment does not proscribe warrantless searches, it proscribes unreasonable searches.

The fact is the President created an early warning system to prevent future attacks;
essentially a terrorist smoke detector. But rather than appreciate the protection it offered,
critics rushed to pull out the batteries so that it couldn’t work. My feelings of admiration
and respect for the companies who did their part to defend America are well known. As
I’ve said in the past, any company who assisted us following the attacks of 9/11 deserves
a round of applause and a helping hand, not a slap in the face and a kick to the gut.

As an antidote to the pyretic claims about the police state, the Senator remarks:

In the over 40 outstanding civil lawsuits, is there any proof that any litigant was specifically targeted by the government? Can any of the plaintiffs show that they are “aggrieved persons” under the definition of FISA? The answer to both questions is no. Rather, many of the lawsuits utilize the following logic: I have long distance service, so I am going to sue because I think you listened to my calls. Even though they have no proof; even though the government has more important things to do than listen to their random phone calls, they push on in their desire to justify their view of self importance and irrational belief in government conspiracy. I don’t want to bruise anyone’s ego, but if Al Qaeda is not on your speed dial the government is probably not interested in you.

And in the litigation that follows, either intelligence and national security secrets are revealed, or the companies cannot defend themselves.

A very good summary of the case for immunity and passage of H.R. 6304. Thanks, Senator.

Voting on the first of three amendments, the Feingold-Dodd amendment, to H.R. 6304, has started. Sixty votes are needed for passage of the amendment, which would strip out the immunity for telecom companies.

The votes will stack up in order.

UPDATE (12:17 p.m.): The Feingold-Dodd amendments fails, 32-66. We’ll post the roll call when it becomes available.  Roll call vote here.

Next up, the Specter amendment.

UPDATE (12:45 p.m.): Specter amendment falls 37-61. (Roll call vote here.) Now to the Bingaman amendment, with the final vote on the entire bill to occur after 2 p.m.

UPDATE (12:53): Bingaman amendment fails, 42-56. Senate is in recess until 2 p.m. (Roll call vote here.)