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Obama, not McCain or Clinton, votes for electronic privacy

Senate vote serves as privacy litmus test for leading presidential candidates, showing only Sen. Barack Obama voted to hold telcos liable for any violations of privacy law.

File photo: Sen. Obama criticizes Bush's warrantless wiretapping program in a speech at Dartmouth College.
Declan McCullagh/

A U.S. Senate vote that took place two hours ago reveals how much three of our leading presidential candidates are committed to electronic privacy and the rule of law.

Barack Obama passes the test. John McCain failed. Hillary Clinton gets an incomplete.

The vote was on an amendment to deny AT&T and other telecommunications companies legal immunity if they are proven in court to have violated federal privacy law by opening their networks to the National Security Agency.

Obama voted for the amendment. That's a vote for electronic privacy and for the rule of law. It means that AT&T and any other companies that may have violated the law would be held accountable for any illegal actions they committed. Conversely, if AT&T, et al, violated no laws, its lawyers have nothing to worry about.

McCain opposed the amendment. This is a flip-flop from his earlier statement to us that we published as part of our voter's guide earlier this year. It said:

Every effort in this struggle and other efforts must be done according to American principles and the rule of law. When companies provide private records of Americans to the government without proper legal subpoena, warrants, or other legal orders, their heart may be in the right place, but their actions undermine our respect for the law.

I am also a strong supporter of protecting the privacy of Americans. The issues raised by S 2248, and the events and actions by all parties that preceded it, reach to the core of our principles. They merit careful and deliberate consideration, fact-finding, and exploration of options. That process should be allowed to proceed before drawing conclusions that may prove to be premature.

If retroactive immunity passes, it should be done with explicit statements that this is not a blessing, there should be oversight hearings to understand what happened, and Congress should include provisions that ensure that Americans' private records will not be dealt with like that again.

McCain sent us that e-mail on November 30, 2007--at a time when Zogby polls gave him a mere 8 or 9 percent of the vote nationally, behind Rudy Giuliani, Fred Thompson, Mike Huckabee, and at best tied with Mitt Romney.

But now that McCain has a clear path to the Republican nomination, his political principles appear to have become more malleable. In the version of the legislation he supported, there were no explicit statements telling AT&T and other telecommunications companies that this is not a "blessing." There were no deals providing for "oversight hearings." And there certainly were no "provisions" to ensure this won't happen again.

As for Clinton? She never even showed up for the vote, in which the amendment (opposed by all Republican senators) failed by a 31-67 vote.

A schedule provided by her campaign shows Clinton in El Paso, Texas, for a "Solutions for America" rally beginning at 8:30 p.m. EST. But the Senate vote was at 11:03 a.m. EST, giving her plenty of time to attend both events. Obama and McCain both face similarly taxing schedules in advance of the March 4 Texas primary, but they took the time to show up.

To be fair to Clinton, she did tell us for our voter's guide that "I oppose retroactive immunity for telecommunications providers." But politicians should be judged on what they do, not on what they say, and Clinton did not meet that test Tuesday in the Senate.