"Spy on unsuspecting Americans? That's our job," you can imagine federal officials indignantly declaring as they investigate cell-phone tracking by the mobile software company, Carrier IQ. The National Security Agency began secret, illegal surveillance of our phone calls and Internet activities in 2001, as we belatedly learned in 2005. Yes, 2005 is a long time ago these days, when yesterday seems like old news; but the NSA scandal deserves to be remembered, especially when the government presumes to be outraged by telecom spying.
When it began spying on us after 9/11, the Bush Administration enlisted the assistance of telecoms willing to engage in illegal activities at its behest. (Former Qwuest CEO Joseph Nacchio later claimed that after he declined to cooperate with the surveillance program, in 2001, the government retaliated, denying the company lucrative contracts. In 2007, Nacchio was convicted of insider trading.) After the NSA program was exposed, complicit telecoms faced the risks of losing expensive civil suits. AT&T, in particular, was badly exposed, thanks to incriminating documents released by a whistleblower and a lawsuit filed by the Electronic Frontier Foundation. But not surprisingly, Congress intervened. In 2007, it retroactively immunized the companies for illegal activities authorized by the president. As the late, disgraced Richard Nixon explained, prematurely, "when the President does it, it's not illegal." Voting in favor of telecom immunity, then candidate and Senator Obama apparently agreed.
The recent history of illegal government/corporate surveillance and retroactive Congressional approval of it won't justify any offenses allegedly committed by Carrier IQ -- or will it? The FBI has declined to confirm or deny its use of Carrier IQ data, which could be illegal; major telecoms could also be liable for using tracking software. But perhaps neither government agents nor telecoms need worry. Perhaps they can rely on Congress to ensure that whatever surveillance is illegal now will not be illegal for long.