Although Congress may have just inadvertently given telecommunication companies a huge legal boost to engage in network management via the pretext of “terrorism-related” surveillance, it is a long shot from being a done deal. For starters, the Electronic Frontier Foundation has launched the first in what is expected to be a multi-lateral legal attack on the constitutionality of the FISA Amendments Act; the starting point is a claim that the law violates the separation of powers clause of the Constitution, in that Congress’ action unconstitutionally empowered the Executive branch while emasculating any judicial oversight or reprimand of abuses conducted under the permission of the legislature.
Should the entire FISA Amendments Act be declared unconstitutional – and not just the provision granting telecom companies retroactive immunity for spying on us without proper legal justification – the diminishment of network neutrality under the auspices of national security would be undermined, perhaps fatally. That would be a very good thing. EFF’s legal experts don’t expect action on their lawsuit to really begin to gain traction until later this year – right around (or shortly after) the November elections. The case itself won’t likely be resolved until sometime next year at the earliest.