Up front: Telecoms can keep their wiretap immunity...for now

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When the President of the United States grants authority to a private entity for it to conduct operations that he says are in the national interest, there typically is very little that a single federal judge can do to overturn that authority. So perhaps it should be no surprise that US District Court Judge Vaughn Walker yesterday upheld President Bush's grant of immunity from civil lawsuits to telecommunications companies including AT&T, for working with the National Security Agency in anti-terrorist operations. But did Judge Walker leave bread crumbs for plaintiffs in those suits to seek redress from the former president himself? This morning, the EFF has found some crumbs.

Federal judge tosses warrantless wiretap suits, but not too far

Afternoon of June 3, 2009 • What the plaintiffs in yesterday's suits were arguing for was the right to sue -- specifically, the right to seek redress against companies that may have participated with the government in wiretapping operations that may have harmed them, even if indirectly. The government's argument has been that the suits themselves should be dismissed, on the basis that their very subject matter could expose state secrets.
Even after having been amended last year, the Foreign Intelligence Surveillance Act contained a provision that explicitly said that for actions taken by telecom companies between September 11, 2001 and January 7, 2007, the executive branch has the right to enact immunity from lawsuits on a per-case basis. The most recent challenge by plaintiffs was that such a clause was unconstitutional in itself -- specifically, that it made Congress the final arbiters of constitutionality as to whether telcos overstepped their bounds, even under presidential orders.

"The court finds no merit in this argument," Judge Walker wrote yesterday. "Congress has created in section 802 a 'focused immunity' for private entities who assisted the government with activities that allegedly violated plaintiffs' constitutional rights. In so doing, Congress has not interpreted the Constitution or affected plaintiffs' underlying constitutional rights. Moreover, plaintiffs' alarm about prospective disregard for the Constitution by private entities is largely misplaced given that the immunity for warrantless electronic surveillance under section 802(a)(4) is not available for actions authorized by the president after January 17, 2007, before FISAAA [the amended FISA act] became law."

So while Judge Walker time and again reinforced Congress' right to grant the President the right to immunize these activities -- without acknowledging they existed -- he actually tossed the plaintiffs a bone the size of a dinosaur fossil. It comes in the form of the government's own defense: essentially that the government isn't being unfair because it hasn't closed the door to a full-scale constitutional challenge.

"The United States and the telecommunications company defendants counter that while suits against telecommunications companies are foreclosed, neither the statute nor the government's actions prevent plaintiffs from seeking redress for their constitutional claims against the government actors and entities," wrote Judge Walker. "Lest any further reassurance be necessary, the [Senate Select Committee on Intelligence] report states: 'The committee does not intend for [section 802] to apply to, or in any way affect, pending or future suits against the Government as to the legality of the President's program.'"

And if you missed that Mack truck, you might also have missed this jumbo jet that Walker made crystal clear with a cherry on top: "The court agrees with the United States and the telecommunications company defendants on this point: plaintiffs retain a means of redressing the harms alleged in their complaints by proceeding against governmental actors and entities who are, after all, the primary actors in the alleged wiretapping activities. Indeed, the same plaintiffs who brought the Hepting v. AT&T lawsuit...are now actively prosecuting those claims in a separate suit filed in September 2008 against government defendants before the undersigned judge [Judge Walker himself]."

So while the Electronic Frontier Foundation continues to represent plaintiffs in matters such as the ones Judge Walker dashed out the door yesterday, it definitely took note of what actually might only be interpreted as advice. In fact, depending on how you look at it, Walker may end up helping the plaintiffs' cases by directing them toward the right channels. Citing that last paragraph, the EFF's statement last night noted, "In today's ruling, Judge Walker left the door open to accountability for the government."

Moblin Linux makes a big entrance

Afternoon of June 3, 2009, Taipei time • If you can think of a good segue from national security and the US Constitution to mobile Linux, please feel free to insert it here. In the meantime, the news from Computex last night includes a big rollout for Intel's lightweight version of Linux for netbooks (and that's what they're called now, I hear): The Moblin Linux Beta is out, and HP, Asus, and Micro-Star (MSI) were among the manufacturers showing off Intel Atom-based platforms that run the system.

This is a major set of endorsements, especially in light of the fact that a majority of netbook manufacturers have been adopting Windows XP (not Vista) in just the last few months. By the way, if you're interested in testing the operating system for yourself, there apparently is a way to use Sun's VirtualBox 2.2 to run a Moblin image on your desktop under a hosted environment. An Intel engineer tried it out a few weeks ago, with reasonable success.

Intel re-enters the embedded software field

8:15 am EDT June 4, 2009 • Since Intel's doing so well with operating systems now, apparently, it's decided to make its move into mobile applications and embedded software while Computex is still going on. This morning, the company announced it's acquiring Wind River Systems, which makes real-time operating systems such as VxWorks, based around Linux, for embedded platforms. It's an all-cash deal valued at $884 million, which is about two-and-a-half times Wind River's annual revenue.

That move will give Intel a leg up in mobile middleware, which it needs to help make Moblin a complete platform offering. Unlike the PC space, mobile platform developers build devices to perform functions, not really to run OSes that run other software that perform functions. So Wind River -- which becomes a wholly-owned Intel subsidiary now -- will make Moblin's mobile functionality into an all-in-one play that could be even more attractive to manufacturers. And now you see why Microsoft doesn't want Windows 7 to play in this space; if you think about it, it really doesn't fit.

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