Is the 4th Amendment Dead?

Newscoma has called time of death for the 4th Amendment at 3:23PM on July 9th 2008.

Sharon Cobb laments Barack Obama's vote in favor of the final bill saying, "I could deal with his move to the middle to get elected. I could deal with him not having the best health plan...But voting FOR FISA? No. I can't deal with that."

I get that people are upset with this, but c'mon, the death of the 4th amendment? Setting aside telecom immunity, what is so damned bad about this bill? Newscoma summarizes some of the key points:

Require the secret court set up to oversee FISA to review the surveillance of any targeted American whether the person is in the United States or abroad;

Provide for the FISA court to sign off on procedures for removing the name of any American inadvertently captured in a communication with a foreign target;

Prohibit reverse targeting, which is when intelligence officials eavesdrop on a foreigner’s communications overseas as a means to spy on someone in the United States.

Close a loophole by explicitly establishing the 1978 law as the exclusive means for authorizing electronic surveillance;

Set up a procedure for federal judges to determine whether a telecommunications company can be sued for providing the intelligence community access to its networks without a court order.

Now, so far as I can tell, the amendments to FISA actually increase our civil liberties protections over what the current administration is doing, they don't decrease it. The amendments, by and large, add more layers of protections while updating a law designed well before the changes in technology such as disposable cell phones and internet.

If we are going to declare a date of death for the 4th amendment, I think American history is replete with examples far worse than this updated FISA bill...namely any time during which Hoover was director of the F.B.I.

Could this bill have been better? Sure, but telecom immunity is hardly an issue worth being disillusioned over. The chance of a punitive award large enough to make a difference to the phone companies was remote at best (at least at the appellate level) - at best a few lawyers would've gotten rich and we would've gotten a free coupon. And the notion that we would've gotten more information out of these civil trials is ridiculous, because the information desired is classified.

If the House and Senate want investigations, they ought to subpoena the heads of these companies in a closed-door committee to see what did and didn't happen, and then work from there.

Civil liberties violations often happen in war time, especially after traumatic events like 9/11. We didn't go back and throw Attorney General Francis Biddle in a cell because of his actions in the detention of the Japanese after Pearl Harbor (a far greater violation of civil liberties than data mining). I think throwing telecom executives in jail for cooperating with the Federal Government after 9/11 would be a step too far. We should strengthen the laws we have, increase oversight, and do our best to prevent something like this in the future...but its time we look forward.

See Also:

Gail Collins' message to those disillusioned by the "new" Obama:

When an extremely intelligent politician tells you over and over and over that he is tired of the take-no-prisoners politics of the last several decades, that he is going to get things done and build a “new consensus,” he is trying to explain that he is all about compromise. Even if he says it in that great Baracky way.

The new FISA bill was a compromise, and isn't it better to get some of what you want than to get nothing at all?