Arguments and Counterarguments for Telecom Immunity
The activities undertaken by the telecommunications companies to assist the government in surveillance activities at the President's request were not illegal and did not violate any rights of consumers or citizens. Those who have filed lawsuits against these companies have dubious claims.
1. The activities were likely illegal. Relevant Law: Section 222 of the Communications Act of 1934 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.
2. Some telecom companies refused to cooperate because they were concerned about the programs legality
From ''Wider Spying Fuels Aid Plan for Telecom Industry'' by By ERIC LICHTBLAU, JAMES RISEN and SCOTT SHANE, New York Times
"But in 2004, one major phone carrier balked at turning over its customers’ records. Worried about possible privacy violations or public relations problems, company executives declined to help the operation."
"In a separate N.S.A. project, executives at a Denver phone carrier, Qwest, refused in early 2001 to give the agency access to their most localized communications switches, which primarily carry domestic calls."
"The N.S.A., though, wanted to extend its reach even earlier. In December 2000, agency officials wrote a transition report to the incoming Bush administration, saying the agency must become a “powerful, permanent presence” on the commercial communications network, a goal that they acknowledged would raise legal and privacy issues."
"N.S.A. officials met with the Qwest executives in February 2001 and asked for more access to their phone system for surveillance operations, according to people familiar with the episode. The company declined, expressing concerns that the request was illegal without a court order." [Note that this request occurred seven months prior to 9/11.]
3. FISA law specifically addresses civil suits: "any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate." (18 U.S.C. 2520)
Legality aside, the activity was conducted at the behest of US President and the program was deemed legal by the US Attorney General. They acted in good faith and were morally obligated to comply with the requests. If laws were broken, it is the fault of the administration, not the companies who complied out of patriotism. Telecom executives and lawyers are not experts in this complicated area of Constitutional law.
1. "Good faith" violations are protected by existing FISA law, therefore new legislation specifically immunizing Telecoms is not necessary
"(d) Defense.— A good faith reliance on—
(1) a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization;
(2) a request of an investigative or law enforcement officer under section 2518 (7) of this title; or
(3) a good faith determination that section 2511 (3) or 2511 (2)(i) of this title permitted the conduct complained of;
is a complete defense against any civil or criminal action brought under this chapter or any other law."
(18 U.S.C. 2520 part (d))
2. This is not a question of Constitutional law, but rather of Federal law. FISA was written and passed by the U.S. Congress explicitly for the purpose of providing rules to which the government and Telecommunications companies must adhere when conducting surveillance activities. The law is also clear. As Cindy Cohn of the Electronic Frontier Foundation, the lead counsel in the pending litigation against AT&T, says:
"Remember, these phone companies are very sophisticated about these FISA laws and the other laws that explain how and when they can cooperate with law enforcement. These aren't some rogues. This isn't Joe's Phone Company. They are very sophisticated and know the law better than almost everyone...But even if they didn't, I don't think it takes a lot of thought to wonder: "huh, the FISA law says that the exclusive means by which the Government can get information is either by a warrant or a short-term certification from the Attorney General in an emergency situation. Huh - do either of these two things justify ongoing wholesale surveillance of all of our customers for five years and counting?"
3. At least one telecom had the ability to understand the law. Qwest CEO, Joseph Nacchio, issued the following statement: (Case 3:06-cv-00672-VRW Document 308 Filed 07/20/2006:
"In the Fall of 2001 * * * while Mr Nacchio was Chairman and CEO of Qwest and was serving pursuant to the President’s appointment as the Chairman of the National Security Telecommunications Advisory Committee, Qwest was approached to permit the Government access to the private telephone records of Qwest customers. Mr Nacchio made inquiry as to whether a warrant or other legal process had been secured in support of that request. When he learned that no such authority had been granted and that there was a disinclination on the part of the authorities to use any legal process, including the Special Court which had been established to handle such matters, Mr Nacchio concluded that these requests violated the privacy requirements of the Telecommications [sic] Act. Accordingly, Mr Nacchio issued instructions to refuse to comply with these requests. These requests continued throughout Mr Nacchio’s tenure and until his departure in June of 2002."
The telecommunications companies who participated in surveillance activities at the government's request — and even those who did not — are not able to defend themselves, due to the secrecy of the activities. It is not fair to allow these companies to face civil or criminal litigation, since they are unable to defend themselves in public or in court.
1. Existing law provides means for defense:Under FISA (50 USC 1806(f)), telecoms are explicitly permitted to present any evidence in support of their defenses in secret (in camera, ex parte) to the judge and let the judge decide the case based on it.
"...[the United States district court] shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted."
2. The ability for courts to make provisions for reviewing secure material is common. As Constitutional Law attorney Glenn Greenwald argues, "Courts review classified material all the time. FISA and other laws specifically contain safeguards to ensure that courts can prosecute and otherwise adjudicate lawbreaking while ensuring that genuinely classified information remains concealed." In Glenn's interview of lead counsel in the AT&T case Cindy Cohn, Cohn explained: "the FISA law has very strict limitations, and allows the judge to exercise a lot of discretion, to keep things that are legitimately national security secrets, secret."
3. This argument was reviewed and rejected by current litigation: In the November 19, 2007 ruling in Al-Haramain v. Bush, the Ninth Circuit did just that. The court wrote:
"Under FISA . . . if an "aggrieved person" requests discovery of materials relating to electronic surveillance, and the Attorney General files an affidavit stating that the disclosure of such information would harm the national security of the United States, a district court may review in camera and ex parte the materials "as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted." 50 U.S.C. 106(f). The statute further provides that the court may disclose to the aggrieved person, using protective orders, portions of the materials "where such disclosure is necessary to make an accurate determination of the legality of the surveillance." Id. The statute, unlike the common law state secrets privilege, provides a detailed regime to determine whether surveillance "was lawfully authorized and conducted." id.
4. Some telecom companies have stated publicly they did not participate:
"As a result of media reports that BellSouth provided massive amounts of customer calling information under a contract with the NSA, the Company conducted an internal review to determine the facts. Based on our review to date, we have confirmed no such contract exists and we have not provided bulk customer calling records to the NSA"
5. The court specifically ruled in the AT&T case that the state secrets privilege does not prevent AT&T from defending itself.
"Accordingly, the court concludes that the state secrets privilege will not prevent AT&T from asserting a certification-based defense, as appropriate, regarding allegations that it assisted the government in monitoring communication content. The court envisions that AT&T could confirm or deny the existence of a certification authorizing monitoring of communication content through a combination of responses to interrogatories and in camera review by the court. Under this approach, AT&T could reveal information at the level of generality at which the government has publicly confirmed or denied its monitoring of communication content. This approach would also enable AT&T to disclose the nonprivileged information described here while withholding any incidental privileged information that a certification might contain."
6. Proponent arguments are contradictory. They argue at the same time that the telecommunications cannot defend themselves (Argument 3) and that evidence exists (Presidential request, Attorney General approval, etc.) that shows the telecommunications firms acted legally. (Arguments 1&2) If such is the case, then no amnesty for telecommunications companies is required and the court of law should be allowed to exercise its duties to interpret whether such evidence does in fact exculpate the telecommunications companies.
The telecommunications companies who participated in surveillance activities didn't do so for monetary gain, but rather at great risk to their financial solvency, reputation, stock value, and even the safety of their employees. They face severe financial hardship from defending lawsuits, as well as from possible judgements against them.
1. Telecommunications companies earn hundreds of millions of dollars on government surveillance contracts. Former CEO of Qwest, Jim Naccioh, describes proposals, contracts, government influence on M&A, and competition among Telcos for "lucrative government contracts" in this highly redacted document. In 1998 or 1999, government contracts generated revenues "in the range of $150-200 million." In early 2001, the NSA sought a new contract: "This new NSA contract was called "Groundbreaker," and Qwest's portion consisted of a $50-100 million opportunity, planned for implementation in 2001..."
2. No evidence has been presented that suggests the Telecoms participated in surveillance activities did so for any other reason than to make money. That is, after all, what they are in business for. As evidence by the fact that telecoms will not continue to provide assistance if the government doesn't pay its bills.
3. No evidence has been presented to indicate that telecommunications companies risked their financial solvency. It is reasonably to expect that if adverse affects of cooperation with the government were to materialize, such has decreased revenues or market capitalization, they would have already materialized. The recession at the beginning of the decade severely hit the telecom industry, resulting in $1 trillion lost market capitalization. Since, however, the industry has held steady if not grown.
Telco market capitalization
|Telco||2001||2004||1/2008||Mergers and Acquisitions|
It is also worth considering that "reputation" and "stock value" would only be affected if the public and stockholders:
1) were aware that a particular Telecom assisted the government in surveillance; AND
2) the activities were deemed illegal; AND
3) the courts financially penalized the company
In other words, when agreeing to assist the government, the Telecoms were only at risk if they knew their activities were illegal.
The US government depends on the citizens, organizations, and companies to keep the people safe. Our intelligence cannot obtain the intelligence it needs without cooperation. Cooperation will decrease if the litigation against these companies is allowed to continue. Other companies and industries will also be loath to comply with future requests out of fear of lawsuits.
1. If the government issues warrants, the telecoms must comply or they will be breaking the law.
2. Proponents arguments are contradictory. As Constitutional Law Lawyer Glenn Greenwald writes, "On the one hand, [Rockefeller] claims that telecoms did nothing wrong because they were "compelled" by the President's orders to cooperate in his warrantless surveillance programs and had no choice. On the other hand, he claims that without retroactive immunity, telecoms won't cooperate in the future." If they were "compelled" in the past, how can they not be "compelled" in the future?
A bipartisan group of Senators from studied this issue, met with relevant people, spoke to experts, reviewed classified information and came to the conclusion that immunity is appropriate. This is a very complicated and Top Secret matter and people ought to trust those who are privy to the details, and therefore knowledge of the facts, and respect the difficult decision that was agreed upon by members of both sides of the aisle.
1. Telecommunications have undertaken a massive lobbying effort in the support of immunity. This is arguably an indication of guilt. It is certainly an admission that they don't expect to win in a court of law.
"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."
"Among those coordinating the industry’s effort are two well-connected capitol players who both worked for President George H.W. Bush: Verizon general counsel William Barr, who served as attorney general under 41, and AT&T senior executive vice president James Cicconi, who was the elder Bush's deputy chief of staff"
2. Employees of Telecommunications companies have vastly increased campaign contributions to supporters of Telecom Immunity, most notably Rockefeller who has lead the immunity effort. Wired
It is reasonable for people to suspect the impartiality of Senators writing or endorsing the legislation, when that legislation favors companies donating large amounts of money to those Senators. This is especially so, when the Senators take the extraordinary step of inserting themselves into matters currently before the court.
The continuation of these lawsuits will lead to the disclosure of state secrets and highly classified information on intelligence sources and methods, which will put our country at risk and aide our enemies.
1. Judge Walker has denied the motion to dismiss the case against AT&T due to the "state secret" claim. He writes:
"it is important to note that even the state secrets privilege has its limits. While the court recognizes and respects the executive’s constitutional duty to protect the nation from threats, the court also takes seriously its constitutional duty to adjudicate the disputes that come before it. See Hamdi v Rumsfeld, 542 US 507, 536 (2004) (plurality opinion) (“Whatever power the United States Constitution envisions for the Executive in its
exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.”). To defer to a blanket assertion of secrecy here would be to abdicate that duty, particularly because the very subject matter of this litigation has been so publicly aired. The compromise between liberty and security remains a difficult one. But dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security."
2. The proponents arguments are contradictory. How can they argue on the one hand that the defendants cannot defend themselves because they cannot reveal state secrets (Argument 3), but then argue on the other hand that state secrets will be revealed (Argument 7)?
The proposed bill is limited in nature. It does not include immunity for government persons. The scope is limited to the period between 9/11/01 and 01/07. Immunity only covers cases where the Attorney General certifies that the defendant companies received written requests or directives from top levels of the Government for their assistance.
1. It's true that early versions of the bill included immunity for government employees, in attempt to protect the Bush Administration from investigation and prosecution of any wrongdoing on their part. The current versions of the bill do not include this provision, hence the argument that it is "limited." This doesn't however, provide justification of Telecom immunity itself.
2. If, as argued elsewhere, Attorney General certification of the legality of the activities undertaken by the Bush administration and telecommunications company is sufficient to exculpate the telecoms, then no telecom immunity legislation is required. It is the duty of the courts to decide the matter of whether the telecom companies broke standing law.
Congress should not condone oversight through litigation.
1. This isn't oversight: FISA law was explicitly enacted to protect the privacy of US citizens from Telecoms turning over communications to the government without legal process. The FISA bill explicitly allows citizens to sue telecoms for violating FISA 50 U.S.C. 1810 :
"An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801 (a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation and shall be entitled to recover—
(a) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater;
(b) punitive damages; and
(c) reasonable attorney’s fees and other investigation and litigation costs reasonably incurred."
Cindy Cohn of the Electronic Frontier Foundation who brought suit against AT&T explains:
"We brought the case only against AT&T because AT&T has an independent duty to you, its customers, to protect your privacy. This is a very old duty, and if you know the history of the FISA law, you'll know that it was adopted as a result of some very deep work done by the Church Committee in Congress, that revealed that Western Union and the telegraph companies were making a copy of all telegraphs going into and outside the U.S. and delivering them to the Government."
2. Congress should not condone adjudication through legislation: The laws are on the books, the litigants who filed suit against AT&T have documented reasons to suspect the defendant violated the laws. The presiding judge has ruled that the case should proceed. The court of law is responsible for determining the merits of the case and to decide whether the defendant has violated the law. That's how the system works. It is not the responsibility of Congressional legislatures to stop this process through legislation.
The President will veto a bill that does not include telecom immunity. This will put the country at risk, since FISA is due to expire in February.
1. Such is the President's Prerogative: The President may choose to exercise his veto power in order to protect telecoms, at the risk of having a version of the FISA bill he feels does not adequately protect US citizens.