September 20, 2007

Congress Should Protect The Telecoms

Newsweek has a special web report from Michael Isikoff and Mark Hosenball regarding a "secretive" effort to lobby Congress by the telecommunications industry. Since Congress passed FISA legislation essentially endorsing the warrantless surveillance of communications from abroad, the ACLU and other groups have targeted the regional Bell operating companies (RBOCs) that cooperate with the NSA in order to shut down the Terrorist Surveillance Program. Now the telecom industry wants immunity from these lawsuits:

The nation’s biggest telecommunications companies, working closely with the White House, have mounted a secretive lobbying campaign to get Congress to quickly approve a measure wiping out all private lawsuits against them for assisting the U.S. intelligence community’s warrantless surveillance programs.

The campaign-which involves some of Washington's most prominent lobbying and law firms-has taken on new urgency in recent weeks because of fears that a U.S. appellate court in San Francisco is poised to rule that the lawsuits should be allowed to proceed.

If that happens, the telecom companies say, they may be forced to terminate their cooperation with the U.S. intelligence community-or risk potentially crippling damage awards for allegedly turning over personal information about their customers to the government without a judicial warrant.

“It’s not an exaggeration to say the U.S. intelligence community is in a near-panic about this,” said one communications industry lawyer familiar with the debate who asked not to be publicly identified because of the sensitivity surrounding the issue.

But critics say the language proposed by the White House-drafted in close cooperation with the industry officials-is so extraordinarily broad that it would provide retroactive immunity for all past telecom actions related to the surveillance program. Its practical effect, they argue, would be to shut down any independent judicial or state inquires into how the companies have assisted the government in eavesdropping on the telephone calls and e-mails of U.S. residents in the aftermath of the September 11 terror attacks.

Most interestingly, the armada of lobbyists that represent the telecoms have some familiar names. Among the surprises: Jamie Gorelick, the Deputy Attorney General that bolstered the "wall" between intel and law-enforcement agencies, represents Verizon. Democratic Party strategist and Clinton administration Assistant Secretary of State Tom Donilon also represents Verizon. Former Republican Senator Dan Coats represents Sprint, and Bush administration attorney Brad Berenson represents AT&T.

It's a powerful, bipartisan effort launched by these telecoms, and billions could be at stake. The trial lawyers and the activists are licking their chops to press class-action lawsuits if the federal court rules in their favor in this test case. It threatens to undermine Congressional will on national security, and worse yet, leaves us exposed to terrorist attacks through willful neglect of critical intel.

Congress has to act to immunize the telecoms. The lawsuits are nothing but an end run around the legalization that Congress itself passed. That decision didn't come from the telecoms and they should not pay the penalty for Congress' action. These companies have acted to help secure the nation in accordance with our intel communities, and their reward should not be bankruptcy. The American public should not have to pay higher telecom bills in order to provide trial lawyers with big paydays.


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Comments (9)

Posted by William Teach | September 20, 2007 9:23 AM

Another point to make in this, Ed, is that the employees (which I am one) of the companies would be in danger of losing their jobs, if the companies are paying out billions. Remember what happened to Dow Corning over the breast implants suits?

These activists do not realize that companies cannot afford to pay their people when they file these suits. Future looking tech development cannot be paid for. Forget new towers for mobile, and upgrading of existing tech for both wireline and wireless.

Of course, some of these activists think wireless carriers have devices designed to program people on their towers. They also care more about someone whose brief call to Aunt Shirley might have been listened to then the millions would would negatively be affected by these suits.

Posted by Cindy | September 20, 2007 9:51 AM

William - the activists do not care if you or I lose our jobs because of their actions. All that matters to them is that they are "right".

I hate to be so cynical but history proves I'm right.....


Posted by rbj | September 20, 2007 10:13 AM

The activists want to end the surveillance program. They don't care about the workers or about the war we are in with Islamic extremists. They aren't in league with the terrorists but they both share the goal of crippling/ending the US.

If the telecoms are complying with US law they should be immune.

Posted by coldwarrior415 | September 20, 2007 10:14 AM

What is the underlying cause of action?

In the law, a cause of action is a set of facts sufficient to justify a right to sue. Don't the complainants have to prove "damgage" and their justification of their suit FIRST?

Specious claims that "everybody suffered" because those mean and nasty telecoms allowed the FBI and NSA to electronically scrutinize cell phone activity under law seems a pretty low threshold.

Who was "damaged" by the telecoms cooperating with the US government? Specifically? [Other than terror cells.]

Can even one individual be cited as having their rights infringed to the point of being "damaged" by the actions of the telecoms?

Would these same complainants [the ACLU] file suit if cell phones were used successfully to a) enable communications between terror cells in the US and the USG did nothing; b) cell phones were used on a mass scale as detonators for a wide range of explosive devices across the country and the USG did not prevent such; c) the telecoms refused to cooperate and a number of terror cells were successful in a number of terrorists actions across the country?

Then, again, it is the ACLU, an outfit that is neither American, not at all civil, cares not a whiff about liberty, and is in the pockets of the unions.

Posted by Cycloptichorn | September 20, 2007 10:30 AM

Some of you seem to have forgotten, that many of the telecos specifically violated their written and signed contracts with their customers, in order to allow the government to engage in illegal spying upon them.

You may feel that it's alright for companies to break clauses in their contracts at will, but I certainly do not. ATT et al had every right to re-issue new contracts, or start issuing new ones, which did not include guarantees against spying by the gov't within them; they chose not to do so.

I hope and predict that there will be no immunization. The companies in question broke the law. In fact, the gov't in question was also in violation of the law. Why is it, that so many Conservatives and Republicans see the law as just something that gets in the way? That it can be broken at will, whenever certain people feel like it?

William Teach, perhaps you should considering working for a company which doesn't engage in lawbreaking. It's like saying Enron should have been immunized, so their employees didn't lose their jobs. Not such a good reason for immunity.

Posted by SSG Fuzzy | September 20, 2007 10:33 AM

In the law, a cause of action is a set of facts sufficient to justify a right to sue. Don't the complainants have to prove "damgage" and their justification of their suit FIRST?


Normally I'd say YES, but you find a liberal enough judge, especially in San Fransisco, they might rule almost anything! They (the ACLU and others) don't even have to win the cases, just the cost of fighting it and potential for damages could force the telecom companies to take actions to protect themselves!

Posted by Tom | September 20, 2007 11:12 AM

The activists want to end the surveillance program. They don't care about the workers or about the war we are in with Islamic extremists. They aren't in league with the terrorists but they both share the goal of crippling/ending the US.

If the telecoms are complying with US law they should be immune.

But they AREN'T complying with US law - not for 5+ years now! Why do you think the administration (and yourself) are struggling to get them retroactive immunity? They have been breking the law because your boy king told them to. If your goal is to continue democracy, you certainly are going about it in an unlawful way. BTW, fine one - JUST ONE - citizen of this country who wants to cripple the USA. Just because YOU want to worship an imbecile, that is your problem. Geez, you folks make me sick to my stomach.

Posted by William Teach | September 20, 2007 3:25 PM

Cycloptichorn, it is interesting that you say I should work for a company that obeys the laws and holds true to their customers. So far, I have yet to see any actual evidence to support the liberal, hysterical allegations of wrongdoing.

First of all, the only promise that we make, at least in my division, is that we will not sell or release your information to a third party without your permission. Let me tell you, our regs are tighter then required by law. We are very careful with our customers info.

Second, there is a little thing called a subpoena. If presented with one, guess what? We must comply. That is the law. And we are violating no trust: government is not a "third party." Are we supposed to break the law by failing to comply, simply because the Left has BDS, and would rather protect non-existent rights of foreigners who are associated with terrorists in some fashion, instead of protecting the security of our country in its people?

Seriously, what the h*ll is wrong with liberals? Why is it so darned importent to give American rights to people who are not Americans?

Catch a clue!

Posted by Jeff Rigsby | September 20, 2007 4:25 PM

Here's another factor to be considered -- hopefully by people who know more about the constitutional law of property rights than I do.

I think the courts have held that the Fifth Amendment guarantee against "depriv[ation] of ... property without due process of law" applies to potential damages in a pending tort case.

In other words, if A is suing B for a sum of money and the relevant lawmaking authority (Congress or a state legislature) passes a special-purpose law to settle the case in favor of B before final judgment, this qualifies as an unconstitutional confiscation of A's property (or what could have turned out to be A's property if he'd been allowed to sue and win).

In the old days, apparently, it wasn't uncommon for state legislators to introduce private bills settling pending lawsuits in favor of their cronies. If I'm not mistaken, the federal courts have put the kibosh on that practice.

Does this affect Congress' power to waive damages against the telcos through legislation? Calling Volokh...

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