I'm Unclear Here

I would prefer not to see warrantless searches without judicial oversight be legal under any circumstances, so I am happy there are roadblocks in the FISA extension.  What I am unclear about, though, are the exact issues surrounding telecom immunity from lawsuits which is apparently what has the thing held up.  By no means do I wish to give telecoms some blanket immunity from the consequences of their handling of private data.  However, it seems odd to want to hold them liable for complying with what would be, under the new law, a legal government order.  Or, is the immunity issue all retroactive to past compliance with government orders when it wasn't so clear if the government orders were legal?

I must say I have some sympathy for businesses, particularly those that are highly regulated as telecom, who bow under government pressure and then get sued for doing so.  For example, as I wrote before, I am required by Arizona law to take actions that the Feds consider illegal.  Its a frustrating place to be.

Anyone who can provide clarity on the issues here (not the FISA issues or wiretapping issues but narrowly on the immunity issue) is encouraged to do so.

  • http://www.tigerhawk.blogspot.com TigerHawk

    The left opposes immunity for the telecoms because it will cut off the lawsuits that have been brought against them by activist groups. The point of those lawsuits is less to win damages than to create a vehicle for the plaintiffs to conduct discovery. Their ambition is to uncover politically damaging evidence that, you know, the Bush administration used some sort of improper leverage to get the telecoms to violate the law knowingly. Understandably, the Bush administration opposes these suits at least for the stated reason -- that businesses will be less likely to help government during future wars if they believe they are risk for post hoc lawsuits -- but also (perhaps) for the disingenuous reason (that immunity will frustrate the political objectives of the plaintiffs).

  • http://publiusendures.blogspot.com Mark

    The law at issue is a pretty clear law that took me about five minutes to look up (I am an attorney, but not one with a lot of experience, and none in telecom law). The telecoms have literally armies of lawyers who are well-versed in issues like this. All that was really required was some sort of written documentation in which the government said it had a reasonable basis for the request, and the telecoms would have been fine- the lawsuits would have been dismissed on a very quick summary judgment motion.

    Apparently, the government never produced these clearly required documents, though. So the telecoms pretty clearly knew they were violating the law by complying with the requests. It is also becoming increasingly clear that the requests were made in the first few weeks of the Bush Administration - well before 9/11.

  • atr

    This does seem a little strange that the telcos are evidently lobbying so hard on this. They won't lose if this goes to court.

    For similar cases following 9/11 (and airline passenger files), see:

    http://www.news.com/Judge-tosses-online-privacy-case/2100-1023_3-5234971.html

    http://www.nysd.uscourts.gov/courtweb/pdf/D08MNXC/04-04317.PDF

  • Fay

    What about the assertion that the wiretaps stopped as soon as the Feds stopped paying their bills? This wasn't about obeying an order or doing any patriotic duty... it was about the Feds being one of the telecoms' biggest clients. And, if it was such a crucial security measure, why didn't the telecoms get paid?

  • JDM

    Alex Tabarrok of Marginal Revolution had an interesting post on this topic a while back:

    http://www.marginalrevolution.com/marginalrevolution/2008/01/no-immunity-for.html

    Evidently some of the telecoms who were quite happy to violate the constitution shut off the surveillance when the FBI was late in paying their bills. So much for the telecoms' "patriotism" argument.

  • JDM

    Alex Tabarrok of Marginal Revolution had an interesting post on this topic a while back:

    http://www.marginalrevolution.com/marginalrevolution/2008/01/no-immunity-for.html

    Evidently some of the telecoms who were quite happy to violate the constitution shut off the surveillance when the FBI was late in paying their bills. So much for the telecoms' "patriotism" argument.

  • markm

    "I am required by US law to take actions that the Feds consider illegal"

    Don't you mean AZ law?

  • Corky Boyd

    Despite he efforts of some of the media (especially the Wasington Post) to associate the activity of the Telecoms with "wiretapping", it is nothing of the sort.

    What is at issue here is the calling records of individuals. It is what number called what number. No conversations are involved. If you are involved in a civil suit, you can obtain calling records with a subpoena, just so you have a case number. No judge is involved. If you want to document you called Company X 12 times in the past 6 months to complain about a leaking roof it installed, that's how you do it.

    The FBI, Treasury, DEA and other federal agencies have routinely obtained these records going back well before the current administration. They are important is determining the circle of contacts of drug dealers in particular.

    What happened after 9/11 was a flurry of activity in anti-terrorism investigations. Phone records requests were commonplace and in many cases Federal agencies failed to obtain the proper paperwork. In some cases they papered after the fact and in others they never obtained it.

    The Telecoms didn't profit from this, they were trying to be cooperative with law enforcement during the highly charged post-9/11 atmosphere.

    If the truth be known, the main people to profit would be trial lawyers who continue to seek the next billion dollar payday.