No Immunity For Telecoms

by hilzoy

OpenLeft has a petition opposing granting immunity to those telecoms that provided data on their customers -- meaning us -- to the government for years, in apparent violation of a number of laws. Glenn Greenwald, who has been all over this issue, has a decent summary of the relevant statutes:

"And now, some of our country's richest, largest, most powerful and most well-connected corporations were caught breaking laws that have been in place for decades, such as Section 222 of the Communications Act of 1934, which provides that "[e]very telecommunications carrier has a duty to protect the confidentiality of proprietary information of . . . customers." 18 U.S.C. 2511 makes warrantless eavesdropping a felony; 18 U.S.C. 2702 requires that any "entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication" without a court order; and 18 U.S.C. 2520 provides for civil damages for any violations."

There are a number of reasons to oppose immunity. First, and most obviously, the law is the law, and we should be obliged to follow it. It's surprising how many people don't seem to get this point when it applies to corporations. Thus, Joe Klein:

"I have no problem with telecommunications companies being protected from lawsuits brought by those who may or may not have been illegally targeted simply because the Bush Administration refused to update the law."

I can only hope that Joe Klein is as willing to defend me the next time I get in trouble simply because the administration has failed to update the speeding laws.

Second, as Glenn Greenwald says, amnesty would probably shut down a number of pending lawsuits, and thus prevent discovery of documents that no one else seems to have much interest in securing or investigating:

"Congress has no intention of investigating any of this, and even if they wanted to -- which they don't -- their subpoenas would simply be ignored and they would do nothing about it. Congress has spent the last six years shutting its eyes towards all of this, except when the White House demanded that it be legalized.

These private lawsuits -- brought by heroic privacy and civil liberties groups -- are the only real mechanism left for discovering what the telecoms and our Government have been jointly doing when it comes to spying on our communications, maintaining surveillance data bases of our actions, and violating a whole litany of long-standing federal laws designed to protect the confidentiality of citizens' communications. A law that gives amnesty to telecoms would mean that those lawsuits are stopped in their tracks, and we would likely never find out -- at least not for a long, long time -- the extent of this oversight-less surveillance by our government on Americans, nor would we be able to obtain a judicial ruling as to its illegality."

Third, this would set a horrible precedent: when the President, or his administration, asks corporations to do things that violate the law, they can be retroactively immunized from prosecution. I, for one, do not want any President, Democrat or Republican, to be able plausibly to claim that s/he will be able to protect corporations from the law. If they want to change the law, they can introduce legislation and try to get it passed. If a genuine emergency arises in which it's not possible to change the law in time, and only corporate lawbreaking stands between us and Armageddon, we can hope that juries would not convict that corporation, or that judges would be lenient. But setting a precedent whereby Presidents can ask corporations to break the law is not the way to deal with these cases. It gives far too much power to the Executive, and it is dangerous to our republic.

Finally, retroactive immunity creates all the wrong incentives for corporations in the future. -- As I see it, the most charitable plausible story one could tell about the telecoms is this: the administration approached them and asked them to turn over information about their customers in violation of the law. The telecoms knew that what the government was asking them to do violated the law -- after all, that's why they hire all those lawyers. Nonetheless, they did not want to go against the administration, on whom they depend for a lot of business, favorable regulations, and so forth. They looked for allies who would give them cover if they refused to comply with the administration's request, but found none: the Justice Department was unwilling to bring this before the FISA court, the Congressional Intelligence Committees, then run by Republicans, were not interested in investigating, and so on. Faced with the prospect of defying the administration on their own, they declined.

In a situation like this, the fear of legal penalties is just about the only incentive a corporation has to stay on the right side of the law. With the prospect of legal penalties, a corporation has to weigh the costs of defying the administration against those penalties. Without them, they have no reason whatsoever not to give the administration whatever it asks.

Do we really want to create a situation in which the President can ask people or corporations to violate the law, and argue that there is precedent for their being able to do so with complete impunity? No. Do we want to allow corporations with extremely good legal departments to get away with breaking the law, when ordinary lawbreakers are sent to jail? No. Do we want to do more than we have already done to undermine the rule of law? No again.

If you agree, then you should consider signing OpenLeft's petition. People for the American Way has a web page that makes it easy to send letters to your Senators; it's here. Thanks.

Comments

[Incertus (Brian)]

Your reasons are all excellent, and I have no idea what planet Joe Klein is from.

[Jay S]

When I worked for the Bell system, even though I didn't work directly with customer records, I (like everyone else) received training in the basic legal requirements to be met before releasing customer records. It happened as orientation training when I started work and as I recall, it was repeated periodically along with other basic work requirements.

These people surely knew what they were doing was against the law. They should be willing to face the consequences for their choices. There may be mitigation or justification, but this is much like the torture argument. Making it retroactively legal with out even knowing what "it" is sends the wrong message. You can't just excuse them without any knowledge of the circumstances or type of information they released. They made a choice, they should be able to justify that choice and/or live with the consequences.

[john miller]

Three points:

The first is that, in asking for immunity, the administration is de facto admitting to there being illegality involved.

Secondly, it is also admitting that the telephone companies involved would have been aware of this, as there is a "good faith" argument which has already been dismissed.

Thirdly, and perhaps most importantly, IIRC some of the legal actions currently in place involve behavior prior to 9/11. Since the adminsitration already has acknowledged they really weren't into terrprism at that time, what possible reasoon could they have had to ask the telecom companies for records?

If retroactive immunity is granted, and I am beginning to doubt it will be, despite the tons of monies the telecom companies have given to people such as Rockefller, we will never know the full answer to what and why.

[janinsanfran]

The telecom immunity issue (on which I agree with you) has become emblematic of the more general failure of the Democratic Congressional majority to respond to the mass of the voters who elected them. On this one, as on so much else, they seem to be listening to some other interest. One tends to assume in this case they are listening to their donors, the public be damned... but that is unproven.

A couple of women at the antiwar demonstration yesterday created a succinct visual representation of the Dems behavior about the telecoms. Yes, it is work safe. :-)

[Incertus (Brian)]

f retroactive immunity is granted, and I am beginning to doubt it will be, despite the tons of monies the telecom companies have given to people such as Rockefller, we will never know the full answer to what and why.

And given the way this administration and a large number of judges seem to be ruling on the state secrets grounds, we may still never know what and why. You'll see a lot of requests for dismissals based on that very ground, I'd be willing to wager.

[MrWizard54]

A flip side to the argument is that in order for justice to be carried out the President must be willing to accept the penalty himself. I think that may be both to noble and to honest though. A pity.

[publius]

agreed - regardless of disputes about other issues, i don't see any political vulnerability on this (everyone hates these companies). plus - it's the right thing to do.

I think #2 is particularly interesting (discovery), though it may yield less than we think. unless they're idiots, the companies would have lawyered up all their opinion memos, emails, etc. on the legality, thus making them privileged.

But still, in the age of email, i'd be shocked if a few didn't slip through

[cleek]

Do we really want to create a situation in which the President can ask people or corporations to violate the law...

do we ? no.

but we have no say in this.

they'll get their immunity, or equivalent - probably in a fight where the Dems offer to drop this in return for giving the administration something it really wants.

[lutton]

No immunity without cooperation...

telecom executives need to disclose the full details of their actions to the relevant congressional committees; only then should there be any discussion of immuity...

[Hartmut]

legal question: can the president pardon only persons or companies also? In other words, if Congress doesn not grant the immunity, could Bush do it instead? Corporations are legal persons, aren't they?
I doubt that something like that has been tried yet but Ianal and there has been a lot of Red-Queen logic around in the last few years.

[Grouchy Marxist]

Call it AMNESTY, not immunity, although either set a terrible precident.

"No Amnesty for Illegals!" really? Then why do you want to give AMNESTY to FELONS committed CRIMES against INNOCENT AMERICANS?

Want to get GWB on the other side of the telecom amnesty debate? increase the penalties for FISA violations; make it a capital offence. If Georgie gets to scrag a few people, he'll be much less likely to veto.

[cleek]

the Dems offer to drop this

by which i meant "the Dems offer to drop [their opposition, such as it is, to] this"

[Frank]

I meant to say something about that post. You have become the sensei of cynicism. Its hard to be cynical enough but you have managed it.