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There’s a difference between a private citizen responding to a crisis and an enormous corporation with already close regulatory ties to the state and a cadre of lawyers cooly and secretly conspiring with the state.

The moral hazard of granting immunity must outweigh any civic minded concern here.

Disclosure: I have represented several telecom companies in the course of my career and I have litigated against AT&T on Federal Communications Act claims. Please judge what I say accordingly.

The posturing of advocates for immunity notwithstanding, whether the administration’s requests were in violation of the applicable laws was not a close question. Although this has largely been flushed down the memory hole, Qwest refused to cooperate with the government and demanded that proper legal procedures be followed before it would proceed. Qwest’s attorneys did not think that the government’s proposed course of action was even arguably within the scope of the law. AT&T and Verizon (whose combined revenues last year were approximately $150 billion) could easily have consulted with qualified counsel and determined the same thing. Contrary to the breathless hysteria about cooperating with the government in “emergencies,” the program at issue was developed over several months and operated for multiple years, requiring the involvement of hundreds, if not thousands, of people. It was not the situation of a police officer running up to an individual on the street and saying that he or she must do something NOW with no opportunity for reflection or consultation.

I should also add that I primarily do defense work and therefore am generally sympathetic to allegations of meritless claims, over the top punitive damage awards, etc. However, there is a very fundamental problem with any party getting a law changed to retroactively immunize it for unlawful conduct that it has all but confessed to. When the parties seeking immunity are multi-billion dollar corporations that have donated lavishly to members of Congress, it becomes even more troubling and damaging to people’s confidence in the justice system. Indeed, there’s a term for countries in which the wealthy can purchase immunity for themselves: “banana republic”.

I agree with Mr. Olson’s post 100%. I wonder why this analysis was not applied to Bob Novak. An official at the CIA asked him not to “out” Valerie Plame, and he did so anyway.

On the face of it the enormous corporations were conspiring with the state to find other 9/11 type plots. For there to me a moral hazard there would have to be similar situations in the future.

Letting the administration get away with their prevarications leading to the Iraq war was a moral hazard. The same techniques are being employed for war with Iran.

Remember when you used to be able to trust the government with emergency powers?

Well I don’t either, but I’ve read about that time in the history books.

Who exactly was harmed again?

Alton, you beat me to the punch. It appears that BDS is clouding the thought processes of otherwise intelligent people.

Bravo, Denver Lawyer.

Alton, the law has always recognized a privacy interest in telephone communications; otherwise all of our calls could be open to surveillance, recording, or dissemination by the government or by the carriers. Certainly, there are situations where the interests of law enforcement or national security trump that privacy interest, but it would be very difficult to argue that it does not exist.

My question: The WSJ piece says that FISA already contains “a safe-harbor authorizing assistance based solely on a certification by the attorney general, his designee, or a host of more junior law enforcement officials that no warrant is required.” If that is so, then what is the purpose of the new bill? The phone companies at issue here presumably could have requested such a ceritification before complying, right?

Alton & Richard,

First, as noted by Tom T., there are statutory damages available. 18 U.S.C. 2520(c)(2) provides that any person whose communications have been intercepted in violation of the wiretap statute can sue for the greater of (a) actual damages or (b) $100 per day of violations to a maximum of $10,000. The statute does not require a showing of actual damages.

Second, in light of the plain language of the statute, the only way a plaintiff cannot have been “harmed” is if the defendant either did not actually engage in wiretapping or wiretapped in compliance with one of the numerous exceptions to the statute. But, of course, if AT&T and Verizon did not engage in wiretapping or did so in compliance with one of the exceptions, then they don’t need immunity, do they?

Denver Lawyer,

But, of course, if AT&T and Verizon did not engage in wiretapping or did so in compliance with one of the exceptions, then they don’t need immunity, do they?

And innocent people don’t need lawyers.

Denver Lawyer:

Dow Corning sold safe products in compliance with existing regulations. A little “immunity” would have been nice – but I assume they would have settled for fundamental fairness so as to not be sued out of existence.

Fairness is not what the trial lawyers have in mind for AT&T and Verizon.

Assuming no one sustained actual damages, and the sole remedy is purely statutory, would you take issue with a legislative fix in this circumstance?

Richard,

Your reasoning, taken to its logical conclusion, would suggest that any person or business that is sued should simply have the legislature step in and rewrite the law so it doesn’t have to go through the expense of litigation. As I said in my earlier post, I primarily do defense work and I’ve certainly represented clients in situations where I believed the plaintiffs’ claims were lacking in merit, but I never thought, “Gee, rather than actually proving my client isn’t liable, I should just call up the appropriate legislators and ask that they change the law so we can all save time and money.” That’s not “justice” within any sense I’m familiar with, that’s rewriting the rules of the game after the fact.

Let me pose a question to you: can you envision any situation in which you would find it questionable for a person or organization to seek immunity for unlawful acts it is alleged to have already committed? E.g.: Contractor builds a house in 2004 and uses defective concrete in the foundation so that two years later the foundation cracks and the house is left uninhabitable. The buyer of the property sues the contractor. Would you find it dubious from the perspective of “justice” if the contractor went to the state legislature and asked for it to pass a law stating that building contractors had no liability for any construction defects prior to 2005? I will emphasize that I would say the contractor has the RIGHT to do it (just like AT&T and Verizon have the RIGHT to lobby Congress for any change in the law they might want), but I would find it reprehensible from the perspective of justice and fairness to the injured party. And I would find it especially reprehensible if contractor went and sought immunity before discovery in the case even started (as I understand AT&T and Verizon are doing here), since then one can’t even determine what exactly the party asking for immunity has really done.

Alton,

I would agree that Dow Corning was the victim of questionable lawsuits, but I don’t think the solution to that was for it to run to state legislatures and demand immunity from ALL product liability/negligence suits related to the implants it manufactured. Especially because the problem in the Dow Corning cases as I understand it was that judges failed to adequately police expert testimony combined with absurd jury verdicts. I haven’t heard of any evidence of the former problem in the AT&T/Verizon cases and the latter problem can only justify a damage cap, not total immunity. (And note that there is already a damage cap for statutory damages under the wiretap statutes.)

As for fairness to AT&T and Verizon, all I can say is that plenty of my clients have been subject to “unfair” lawsuits, in the sense that I believed their conduct was not unlawful or was less culpable than the plaintiffs argued. However, I never thought the solution to that was getting the legislature to immunize them for their conduct. The solution is to prove that they didn’t violate the law or otherwise commit the acts they were accused of.

To answer your question about a legislative fix, I would have no problem with altering the law on a going-ahead basis. The problem is immunizing someone for conduct they are already alleged to have committed in violation of the law. The “Rule of Law” is rendered meaningless if the ultimate determinant of a party’s liability is its ability to buy favorable legislation after the fact.

Denver Lawyer:

Again, why such concern for preserving rights of persons that, at most, sustained only a technical, statutory harm?

Your examples involve actual victims that have sustained damages. None of your examples accurately portray the damned if you do, damned if you don’t position faced by these companies. This is a political, not a legal issue and the companies involved should not be penalized due to shifting political winds.

Option 1: Cooperate with the government and risk opportunistic Class Action lawsuits.

Option 2: Refuse to cooperate based on hypothetical risk of hyper-technical statutory violation, be branded unpatriotic, loose 50% of customers to cooperating competitors (new subscribers primarily comprised of terrorists), get sued anyway.

While some argue over whether the Constriction is a suicide pact, surely you are not advocating we all should risk death to preserve the sanctity of18 U.S.C. 2520(c)(2).

Alton, I agree with you 100%. The phone companies are caught up in a political battle not of their making.

Denver Lawyer, it appears that you believe that the phone companies violated the law and therefore should be punished. I look at it from a different perspective. I believe, as the President does, that he has the right and the duty to protect the country from foreign enemies including the tapping of calls from individuals overseas who are deemed to be terrorists even if the person at the other end of the conversation is in the US. Congress disagreed with that interpretation of Presidential powers. However that issue became moot when Congress agreed to change the law so that the President had Legislative approval to do so. Since the legality of what the President did was never adjudicated, what purpose does it serve to sue the phone companies other than to prevent them from helping the government capture terrorists in the future?

Alton, I think you’re overestimating the harm to the customer base associated with option 2. I think it’s just as likely that a refusing company would attract customers with the prospect of greater privacy.

Again, though, there seems to have been an option 3 under FISA: Request a certification by the appropriate designee of the AG that no warrant is required. What are the costs associated with that?

Richard, I think the issue is not so much whether the President can tap certain phone calls, but rather whether he can do so without a warrant.

Richard, I think the issue is not so much whether the President can tap certain phone calls, but rather whether he can do so without a warrant.

Maybe I didn’t make myself clear enough, Tom. I agree with you that the issue is whether or not the President needs a warrant. I just believe that as long as the target is the foreign terrorist, the President does not need a warrant even if the other party to the call is in the US.