Telecom Immunity

The telecom companies helped the Bush administration in wiretapping people without a warrant. The wiretapping was illegal by any reasonable reading of the law (the law was written after the last burst of questionable government wiretapping during the 60s). There has been a strong push by some people to sue the telecom companies for their role in the wiretapping. It seems that the push is now over, in that both houses of Congress have voted to grant the companies retroactive legal immunity for their participation.

I’ve never completely understood the argument that it should be possible to sue the telecom companies. They didn’t undertake the wiretapping on their own. They did it on the request of the administration. On the one hand, they should have said “no, this request is wrong.” On the other hand, when the administration asks you to do something, you normally do it. We have checks and balances in the government itself. It’s a good idea for all citizens to seriously question government requests. But it should not be legally mandatory for them to do so.

If we are able to sue the telecom companies for their participation in this, what we are saying in effect is that they are responsible for judging the legality of a request from the administration. It seems to me that it is reasonable for the companies to say “the administration told us it was OK, and who are we to argue?” It does not seem right to hold them to a higher standard than that.

The real reason that people want to sue the telecom companies is because they can’t sue the people who really started the policy. The hope is that by putting pressure on the telecom companies now, we can avoid having this happen again in the future. That may be good strategy, but it doesn’t make it right. (As a practical matter the level of discussion on this issue is likely to deter the companies from similar actions for many years.)

I hope that the next administration will launch criminal prosecutions of the people who violated the wiretapping laws. Alternatively, Congress could start a real investigation. Those are the right ways to tackle the problem of illegal action by the government. Unfortunately these are not likely to happen. One need only look at the number of people involved in the illegal Iran/Contra arm sales who are currently back in government to see that there is only very weak punishment for illegal actions in Washington, D.C.


  1. tromey said,

    July 11, 2008 @ 8:11 am

    >> But it should not be legally mandatory for them to do so.

    I am not so sure about this as a blanket statement.

    It is one thing if you are given an order by someone in authority in a moment of crisis. There, you may not have time to think.

    But that is not the case here. Telecom companies have lots of lawyers. They are legally sophisticated out of necessity, and furthermore must surely be completely aware of the laws surrounding wiretapping — because they comply with the letter of these laws routinely, servicing law enforcement requests and the like.

    That is, they cannot have any claim to ignorance. Also, who do these laws constrain, if not the owners of telecom equipment? I think it would be absurd to have a situation where I personally am legally at risk if I wiretap my neighbor, but a telecom company is not at risk for the same actions, just because someone (with no legal authority) told them to do it.

    Not to get all Godwin on you, but this sounds like the Nuremberg defense to me.

    Finally, corporations have no problem pushing back against the government when they feel their interests are on the line. This happens all the time. I don’t think they should get a pass just because it was convenient for them to break the law this time.

    I agree that the people in the government pushing this are unlikely to be punished. I find this very disturbing. Accountability is out the window.

  2. rskrishnan said,

    July 11, 2008 @ 9:28 am

    I tend to agree with tromey.
    The telecom owns the equipment -and- wiretapping is not somethnig that is new to them. They do on a regular basis with the right warrants etc (like say to catch some mafia guys or something similar). My point being that they know the wiretapping law -and- knew it was illegal when they agreed to do it. So, at the very least we need to scare the pants off of them.

    As far as punitive measures against the current mis-administration …
    It seems like the whole of America is in a “grin and bear it” mode as far seeing the last of Bush goes. I really don’t understand why.

    A few (many?) months back Nancy Pelosi and others were clamouring for the impeachment of Bush. Then recently she said “impeachment is off of the table” ?! All I can say is “birds of a feather ….”.
    Bush seems to act with impunity and fears nothing (and no one seems to care except dudes like me(us?) who hide behind keyboards all day long).

    Hopefully Mr.Change will turn out to be more than just talk – but I’m certainly not holding my breath.

  3. Ian Lance Taylor said,

    July 11, 2008 @ 4:42 pm

    It’s true that telecom companies are familiar with the law, but the context was that the administration came to them and said “we are facing a serious danger of attack” and “we have a legal opinion that we don’t need a court order for this” and “for national security reasons you must not tell anybody about what we are talking about.”

    it’s absolutely true that if it would have cost them money they would have pushed back (in fact I imagine that they charged the government for their services, but the revenue would have been tiny for them). But I’m still not sure they should face legal liability.

    The Nuremberg defense was held to be invalid because the accused were guilty of war crimes. War crimes are fairly extreme–the very notion of a crime during war is rather strange, considering that war treats as normal actions which receive the harshest penalties during peacetime. As you say, wiretapping, albeit with a court order, is relatively normal activity. Even in the absence of a court order it does not rise to the level of a war crime.

    I don’t have a knockdown argument for my position. It’s just an expression of what seems right to me.

  4. ncm said,

    July 12, 2008 @ 12:29 am

    The point of the lawsuits was never to punish the telecomms. Nobody seriously believes any outcome could cost them much. The point was to enable legal discovery, to find out what, exactly, it was they were doing. We know some of it, but the testimony I’ve read suggests that the acknowledged programs are only a small subset of what was done.

    The obviously most radioactive of such programs would have been shadowing political opponents. We know Nixon did it, and we know many of the people involved lately were Nixon henchmen. The point of monitoring one’s political opponents is not to know their plans, but to discover details one can use to extort behavior you would prefer, or just to drive them from office. We see hints, again, in the treatment of former New York governor Spitzer, outed by top Republican “ratfucker” Roger Stone. Use of such methods was the basis of J. Edgar Hoover’s entire career.

    One behavior one might use extortion to enforce is voting against one’s own or one’s party’s interest — such as voting in favor of a bill to cover up illegal activities. That, in fact, is the only way I have been able to understand the landslide support for this bill against serious, committed opposition that would have derailed any normal measure.

  5. Ian Lance Taylor said,

    July 14, 2008 @ 10:13 pm

    I suppose I feel that the correct redress here is a Congressional investigation, or to request the information directly from the government via FOIA.

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