Telecom immunity is back

| Comments (2) | COMSEC
As you may have heard, the FISA telecom immunity bill is back. If you haven't heard, the administration is pushing a bill that would, among other things, provide retroactive immunity for telecoms who participated in the warrantless wiretapping program. A few months ago when this last up for debate, I wrote to Dianne Feinstein about this. Probably not uncoincidentally, I got an email from her office about this the other day:
The Intelligence Committee's report on the bill includes declassified text stating that the Executive branch provided letters to electronic communication service providers at regular intervals. These letters all directed or requested assistance and noted that the assistance was authorized by the President and was legal. The Committee's report can be found at http://intelligence.senate.gov/071025/report.pdf.

I introduced an amendment on the Senate floor that would limit this grant of immunity. Under my amendment, cases against the telecommunications companies would go to the FISA Court for judicial review. The Court would only provide immunity if it finds that the alleged assistance was not provided, that assistance met legal requirements, or that a company had a good faith, reasonable belief that assistance was legal.

This seems like a pretty low bar. There are actually three cases:

  1. The telcos thought that they were legally required to enable wiretapping.
  2. The telcos thought that they didn't have to enable wiretapping but that it was legally permitted.
  3. The telcos thought that they were legally forbidden from enabling wiretapping.

The basic rationale for immunity seems to be that the telcos thought they were doing their civic duty and shouldn't be punished if it turns out that it was actually illegal (note that this stance is a bit belied by the much-publicized revelation that the telcos stopped the wiretaps when the government didn't pay). This isn't crazy: certainly, if the telcos were in receipt of a court order directing them to wiretap some set of communications I would expect them to comply (though a telco which was known to have actively resisted the order would certainly be one I'd want to give my business to) and a grant of immunity seems reasonable in such a case—though I'm not sure that one was required. So, if the telcos can demonstrate that they actually had a good faith belief that they were legally required to comply then immunity seems appropriate.

Similarly, if it turned out that the telcos thought they were actually violating the law then immunity seems totally unreasonable. On the other hand, it would be fairly unsurprising if they were stupid enough to leave records lying around that said "let's do this totally illegal thing." Is there anyone who thinks that they should have immunity in this case? (This isn't to say that the law as currently proposed doesn't grant immunity here—I haven't checked—in which case Feinstein's amendment would be an improvement.)

So, case (2) is the interesting case: the telcos thought they had some discretion and decided to exercise it in the government's favor and not that of their customers. That's certainly a reasonable business judgement and of course there are powerful reasons for getting on the government's good side, but getting sued and losing a lot of money in case what they've decided to do is actually illegal is the business risk you take in such cases. If you want (and I do) the telcos to take any interest at all in your privacy, then they actually have to bear some risk in cases when they decide not to do so.

That said, whether the telcos get punished is actually not the most important piece here. As I understand it, one effect of the immunity grant is to effectively foreclose a lot of the lawsuits currently filed against the telcos. Since those suits were a major avenue for public discovery of what really happened in this program, the immunity grant would also act to keep the details of the program secret, which is bad if you think that this is the kind of thing that ought to be publicly discussed rather than just done in secret. I'd be much more receptive to a bill which granted immunity in return for full disclosure, but of course that's not what Feinstein's amendment does, since the immunity determination is made by the FISA court.

2 Comments

Howdy,
The grant of retroactive immunity is a terrible idea on the face of it. It puts into question the rule of law as much as ex post facto laws would, by saying that the rules can change after you've acted.


The administration has the right to pardon the telecommunications carriers. That ends the prosecution without changing what the rules were at the time. Letting the administration go forward with retroactive immunity when it already has the power to pardon is one of the most spineless, ill-thought out, and short-sighted acts contemplated by this or any other Congress. And the latter is a fucking high bar.

Thank you for this very comprehensive and level-headed post.

But the above commentor shouldn't call this "ex post facto." If marijuana were legalized, it's generally recognized that all the non-violent dopeheads in prison would be released. That wouldn't be a bad thing.

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