Whatever happened to those heroes?
Their basic argument seems to be that yes, telecom immunity is bad, but they have bigger fish to fry and this looks like a political loser.
But the key thing we need to keep in focus is what the objective here is. This is a hugely complex chess game. (Or I'm assuming it's complex, since how else can you explain losing twice (ok once) to this President.) The objective of this chess game is to keep focus on the issues that show America why your candidate should win. Keeping focus (in this media environment, at least) is an insanely difficult task. But one tool in that game is picking the fights that resonate in ways that keep focus on the issues that show America why your candidate should win.So if I'm reading him right, he's saying Obama needs to keep focus on the economy, climate change, etc. and not cede points to the Republicans by getting into a debate about terrorism, which is their home turf.
Put more simply, his point is basically that you shouldn't go picking a fight with Republicans about matters of national security.
To which I really have to ask: Why the hell not?
Republicans have been showing themselves to be incompetent about matters of national security for the last seven years, why on earth do people think that the only way Democrats can win is by pussy-footing around the issue. Up until this point, Obama was doing a good job of turning this conventional wisdom on its head, making headway with such perceived acts of political hara-kiri as suggesting he'd negotiate with Iran.
This is partly because he dresses very nicely and gives a good speech, but also because he does have an awful lot of reality on his side. When he talks about how Iran seems to have halted nucleur development, or how sanctions to Cuba aren't necessarily acheiving the desired effects, he does at least have the advantage of having the weight of expert opinion on his side. That doesn't count for as much as it should in US politics, but it's not nothing.
Telecoms immunity seems to me to be one of those cases. Most experts will tell you that huge dragnet surveillance type systems (like plugging all US telecomunications through the NSA) are great for monitoring the population a large, but useless for targetting specific individuals who know they might be under surveilace and are doing their best to avoid it. You can catch the "sort-of-bad" with these systems, but the "really bad" will slip through the net. If you have a serious look at the issue, that's something that should become clear, so I'm not sure that shying away from that argument is the brilliant act of political strategy that Lessig thinks it is.
This is particularly upsetting because Lessig is the sort of enlightenment guy who spends half his life trying to explain stuff like this, and the other half being vexed about how politics tends to get these sorts of "easy questions" wrong. And his usual explanation for why they get it wrong is that there's not enough public scrutiny. This is why he gets involved in lots of technology-based projects to make congress more transparent.
So from that point of view, this shouldn't look to him like an issue to shy away from for Obama. It should, in fact, look like a golden opportunity: take the right side on FISA and dare the Republicans to come after you on it. If they want to have a debate about their unconstitutional and ineffective surveillance practices in the glaring light of an election campaign, then good fucking luck to them.