Recent Changes for "Telecom Immunity Arguments" - FISA Debate Wiki

Telecom Immunity Arguments

karrsic — 2008-06-17 22:49:47

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- http://www.eff.org/files/nsa/statutes.pdf	+ [http://www.eff.org/files/nsa/statutes.pdf 4 statutes violated]

Telecom Immunity Arguments

karrsic — 2008-06-17 22:49:14

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	+ + http://www.eff.org/files/nsa/statutes.pdf

Telecom Immunity Arguments

karrsic — 2008-06-17 22:18:38

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- 1. '''If the government issues warrants, the telecom communications companies '''must''' comply or they will be breaking the law.'''	+ 1. '''If the government issues warrants, the telecoms '''must''' comply or they will be breaking the law.'''

Telecom Immunity Arguments

2008-06-17 21:23:36

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- 1. '''Existing law provides means for defencse:'''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.	+ 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.

Telecom Immunity Arguments

2008-05-28 17:40:38

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- 1. '''Relevant Law:''' [http://www4.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000222----000-.html Section 222] of the [http://www4.law.cornell.edu/uscode/html/uscode47/usc_sup_01_47.html Communications Act of 1934] provides that "[e]very telecommunications carrier has a duty to protect the confidentiality of proprietary information of . . . customers." [http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002511----000-.html 18 U.S.C. 2511] makes warrantless eavesdropping a felony; [http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002702----000-.html 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.'''	+ 1. '''The activities were likely illegal. Relevant Law:''' [http://www4.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000222----000-.html Section 222] of the [http://www4.law.cornell.edu/uscode/html/uscode47/usc_sup_01_47.html Communications Act of 1934] provides that "[e]very telecommunications carrier has a duty to protect the confidentiality of proprietary information of . . . customers." [http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002511----000-.html 18 U.S.C. 2511] makes warrantless eavesdropping a felony; [http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002702----000-.html 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.'''

Telecom Immunity Arguments

2008-05-28 17:39:00

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- =Arguments in favor of Telecom Immunity and Counterarguments=	+ =Arguments and Counterarguments for Telecom Immunity=

Telecom Immunity Arguments

karrsic — 2008-02-02 00:15:34

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- From [http://www.nytimes.com/2007/12/16/washington/16nsa.html?pagewanted=2&_r=1&hp ''Wider Spying Fuels Aid Plan for Telecom Industry'' by By ERIC LICHTBLAU, JAMES RISEN and SCOTT SHANE, Washington Post]	+ From [http://www.nytimes.com/2007/12/16/washington/16nsa.html?pagewanted=1&_r=2&hp ''Wider Spying Fuels Aid Plan for Telecom Industry'' by By ERIC LICHTBLAU, JAMES RISEN and SCOTT SHANE, New York Times]

Telecom Immunity Arguments

karrsic — 2008-02-02 00:01:13

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- 1. '''Telecommunications companies earn hundreds of millions of dollars on government surveillance contracts.''' Former CEO of Qwest, Jim Naccio, describes proposals, contracts, government influence on M&A, and competition among Telcos for "lucrative government contracts" in [http://denver.rockymountainnews.com/pdf/business/nacchio/101007cipa/cipa2.pdf 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..."	+ 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 [http://denver.rockymountainnews.com/pdf/business/nacchio/101007cipa/cipa2.pdf 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..."

Telecom Immunity Arguments

karrsic — 2008-02-01 05:20:02

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- 2. '''The ability for courts to make provisions for reviewing secure material is common." As Constitutional Law attorney [http://www.salon.com/opinion/greenwald/ Glenn Greenwald] [http://www.salon.com/opinion/greenwald/2007/10/31/rockefeller/index.html?source=search&aim=/opinion/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."	+ 2. '''The ability for courts to make provisions for reviewing secure material is common.''' As Constitutional Law attorney [http://www.salon.com/opinion/greenwald/ Glenn Greenwald] [http://www.salon.com/opinion/greenwald/2007/10/31/rockefeller/index.html?source=search&aim=/opinion/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."

Telecom Immunity Arguments

karrsic — 2008-02-01 05:19:09

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- 1. '''"Good faith" violations are protected by existing FISA law, therefore new legislation specifically immunizing Telecoms is not necessary'''	+ 1. ''' "Good faith" violations are protected by existing FISA law, therefore new legislation specifically immunizing Telecoms is not necessary'''
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- 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:	+ 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:

Telecom Immunity Arguments

karrsic — 2008-02-01 05:16:38

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- 1. '''Relevant Law:''' [http://www4.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000222----000-.html Section 222] of the [http://www4.law.cornell.edu/uscode/html/uscode47/usc_sup_01_47.html Communications Act of 1934] provides that "[e]very telecommunications carrier has a duty to protect the confidentiality of proprietary information of . . . customers." [http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002511----000-.html 18 U.S.C. 2511] makes warrantless eavesdropping a felony; [http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002702----000-.html 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.	+ 1. '''Relevant Law:''' [http://www4.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000222----000-.html Section 222] of the [http://www4.law.cornell.edu/uscode/html/uscode47/usc_sup_01_47.html Communications Act of 1934] provides that "[e]very telecommunications carrier has a duty to protect the confidentiality of proprietary information of . . . customers." [http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002511----000-.html 18 U.S.C. 2511] makes warrantless eavesdropping a felony; [http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002702----000-.html 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.'''
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- 3. '''The Rule of Law''' In the United States system of law, the job of the courts is to determine guilt, and subsequent criminal or civil liability. If in fact, the telecommunications companies did nothing wrong, then they will not be found liable. This is how the system works. It is not the Constitutional responsibility of the legislative branch to create new laws, which serve only to retroactively ascertain that certain acts committed against previous law are somehow not subject to that very law. Further, the 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." ([http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002520----000-.html 18 U.S.C. 2520])	+ 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." ([http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002520----000-.html 18 U.S.C. 2520])
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- 2. This is not Constitutional law, but rather Federal law, 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:	+ 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:
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- "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.	+ "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?"
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- 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 company felt that the NSA request was not legal. For Qwest CEO, Joseph Nacchio, issued the following statement ([http://209.85.173.104/search?q=cache:9FTVo-eutzcJ:www.eff.org/files/filenode/att/308_order_on_mtns_to_dismiss.pdf+judge+walker+%22good+faith%22&hl=en&ct=clnk&cd=1&gl=us Case 3:06-cv-00672-VRW Document 308 Filed 07/20/2006]:	+ 3. '''At least one telecom had the ability to understand the law.''' Qwest CEO, Joseph Nacchio, issued the following statement: ([http://209.85.173.104/search?q=cache:9FTVo-eutzcJ:www.eff.org/files/filenode/att/308_order_on_mtns_to_dismiss.pdf+judge+walker+%22good+faith%22&hl=en&ct=clnk&cd=1&gl=us Case 3:06-cv-00672-VRW Document 308 Filed 07/20/2006]:
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- 1. 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.	+ 1. '''Existing law provides means for defencse:'''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.
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- "[W]henever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority, 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."	+ "...[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."
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- 2. As Constitutional Law attorney [http://www.salon.com/opinion/greenwald/ Glenn Greenwald] [http://www.salon.com/opinion/greenwald/2007/10/31/rockefeller/index.html?source=search&aim=/opinion/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."	+ 2. '''The ability for courts to make provisions for reviewing secure material is common." As Constitutional Law attorney [http://www.salon.com/opinion/greenwald/ Glenn Greenwald] [http://www.salon.com/opinion/greenwald/2007/10/31/rockefeller/index.html?source=search&aim=/opinion/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."
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- In the November 19, 2007 ruling in Al-Haramain v. Bush, the Ninth Circuit did just that. The court wrote:	+ 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:
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- 3. Facts demonstrating the illegality of the surveillance are already public. The Bush administration has admitted openly that it spied on Americans without warrants. The [www.eff.org Electronic Frontier Foundation] has [http://www.eff.org/files/nsa/att.pdf documents[ detailing AT&T's complicity with the NSA's warrantless surveillance.	+ 4. '''Some telecom companies have [http://bellsouth.mediaroom.com/index.php?s=press_releases&item=2860 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"
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- 4. Some telecom companies have [http://bellsouth.mediaroom.com/index.php?s=press_releases&item=2860 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.	+ 5. '''The court specifically ruled in the AT&T case that the state secrets privilege does not prevent AT&T from defending itself.'''
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- 6. Proponent arguments are contradictory. They argue at the same time that the telecommunications cannot defend themselves (by, for instance, following legal process) and that evidence exists (Presidential request, Attorney General approval, etc.) that shows the telecommunications firms acted legally. 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.	+ 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.
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- 1. Telecommunications companies earn hundreds of millions of dollars on government contracts. Former CEO of Qwest, Jim Naccio, describes proposals, contracts, government influence on M&A, and competition among Telcos for "lucrative government contracts" in [http://denver.rockymountainnews.com/pdf/business/nacchio/101007cipa/cipa2.pdf 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..."	+ 1. '''Telecommunications companies earn hundreds of millions of dollars on government surveillance contracts.''' Former CEO of Qwest, Jim Naccio, describes proposals, contracts, government influence on M&A, and competition among Telcos for "lucrative government contracts" in [http://denver.rockymountainnews.com/pdf/business/nacchio/101007cipa/cipa2.pdf 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..."
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- 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 [http://blog.wired.com/27bstroke6/2008/01/fbi-wiretap-cut.html doesn't pay its bills.]	+ 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 [http://blog.wired.com/27bstroke6/2008/01/fbi-wiretap-cut.html doesn't pay its bills.]
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- 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.	+ 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.
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- 1. If the government issues warrants, the telecom communications companies '''must''' comply or they will be breaking the law.	+ 1. '''If the government issues warrants, the telecom communications companies '''must''' comply or they will be breaking the law.'''
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- 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?	+ 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?
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- 1. Telecommunications have undertaken a massive lobbying effort in the support of immunity. This is arguably an admission of guilt. It is certainly an admission that they don't expect to win in a court of law.	+ 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.
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- 2. Employees of Telecommunications companies have vastly increased campaign contributions to supporters of Telecom Immunity, most notably Rockefeller who has lead the immunity effort. [http://blog.wired.com/27bstroke6/2007/10/dem-pushing-spy.html Wired]	+ 2. '''Employees of Telecommunications companies have vastly increased campaign contributions to supporters of Telecom Immunity, most notably Rockefeller who has lead the immunity effort.''' [http://blog.wired.com/27bstroke6/2007/10/dem-pushing-spy.html Wired]
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- 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, through legislative means.	+ 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.
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- 1. Judge Walker has [http://209.85.173.104/search?q=cache:9FTVo-eutzcJ:www.eff.org/files/filenode/att/308_order_on_mtns_to_dismiss.pdf+judge+walker+%22good+faith%22&hl=en&ct=clnk&cd=1&gl=us denied] the motion to dismiss the case against AT&T due to the "state secret" claim. He writes:	+ 1. '''Judge Walker has [http://209.85.173.104/search?q=cache:9FTVo-eutzcJ:www.eff.org/files/filenode/att/308_order_on_mtns_to_dismiss.pdf+judge+walker+%22good+faith%22&hl=en&ct=clnk&cd=1&gl=us denied] the motion to dismiss the case against AT&T due to the "state secret" claim.''' He writes:
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- 2. Judge Walker also notes that though plaintiffs have the right to discovery, the state secrets privilege may be applied to specific evidence. - - "The court also declines to decide at this time whether this case should be dismissed on the ground that the government’s state secrets assertion will preclude evidence necessary for plaintiffs to establish a prima facie case or for AT&T to raise a valid defense to the claims. Plaintiffs appear to be entitled to at least some discovery. See infra I(G)(3). It would be premature to decide these issues at the present time." - - 3. 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, but then argue on the other hand that state secrets will be revealed?	+ 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)?
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- 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.	+ 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.
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- 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.	+ 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.

Telecom Immunity Arguments

karrsic — 2008-02-01 04:42:59

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- ==January 28, 2008 Note:== - The Senate is currently deliberating passage of the Intelligence committee version of the FISA bill, without allowing amendments to be debated. Much of the media is reporting that '''FISA expires Friday''' so that a bill must be passed or the security of citizens will be threatened. It should be noted that '''FISA does not expire Friday.''' Only changes to FISA made last August, 2007, will expire Friday. FISA, which has been around since 1977 and has been amended several times (including after 9/11), will continue to be in force and spying on foreigners will continue. -

Telecom Immunity Arguments

2008-01-28 22:23:00

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Telecom Immunity Arguments

2008-01-28 22:17:59

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- The Senate is currently deliberating on whether to pass the Intelligence committee version of the FISA bill, without allowing amendments to be debated. Much of the media is reporting that '''FISA expires Friday''' so that a bill must be passed or the security of citizens will be threatened. It should be noted that '''FISA does not expire Friday.''' Only changes to FISA made last August, 2007, will expire Friday. FISA, which has been around since 1977 and has been amended several times (including after 9/11), will continue to be in force and spying on foreigners will continue.	+ The Senate is currently deliberating passage of the Intelligence committee version of the FISA bill, without allowing amendments to be debated. Much of the media is reporting that '''FISA expires Friday''' so that a bill must be passed or the security of citizens will be threatened. It should be noted that '''FISA does not expire Friday.''' Only changes to FISA made last August, 2007, will expire Friday. FISA, which has been around since 1977 and has been amended several times (including after 9/11), will continue to be in force and spying on foreigners will continue.

Telecom Immunity Arguments

2008-01-28 22:04:02

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- "Among those coordinating the industry’s effort are two well-connected capital 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"	+ "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"

Telecom Immunity Arguments

2008-01-28 21:37:06

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- 3. Facts demonstrating the illegal surveillance are already public. The Bush administration has admitted openly that it spied on Americans without warrants. The [www.eff.org Electronic Frontier Foundation] has [http://www.eff.org/files/nsa/att.pdf documents[ detailing AT&T's complicity with the NSA's warrantless surveillance.	+ 3. Facts demonstrating the illegality of the surveillance are already public. The Bush administration has admitted openly that it spied on Americans without warrants. The [www.eff.org Electronic Frontier Foundation] has [http://www.eff.org/files/nsa/att.pdf documents[ detailing AT&T's complicity with the NSA's warrantless surveillance.

Telecom Immunity Arguments

2008-01-28 21:35:19

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- In the November 19, 2007 NSA of Al-Haramain v. Bush, the Ninth Circuit did just that. The court wrote:	+ In the November 19, 2007 ruling in Al-Haramain v. Bush, the Ninth Circuit did just that. The court wrote:

Telecom Immunity Arguments

2008-01-28 21:33:41

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- 2. As Constitutional Law lawyer [http://www.salon.com/opinion/greenwald/ Glenn Greenwald] [http://www.salon.com/opinion/greenwald/2007/10/31/rockefeller/index.html?source=search&aim=/opinion/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."	+ 2. As Constitutional Law attorney [http://www.salon.com/opinion/greenwald/ Glenn Greenwald] [http://www.salon.com/opinion/greenwald/2007/10/31/rockefeller/index.html?source=search&aim=/opinion/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."

Telecom Immunity Arguments

2008-01-28 21:27:37

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- 2. This is not Constitutional law, but rather Federal law, written and passed by the U.S. Congress explicitly for the purpose of providing rules by 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:	+ 2. This is not Constitutional law, but rather Federal law, 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:

Telecom Immunity Arguments

2008-01-28 21:22:19

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- "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 eight months prior to 9/11.]	+ "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.]

Telecom Immunity Arguments

2008-01-28 21:20:02

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- "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 was reportedly prior to 9/11.]	+ "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 eight months prior to 9/11.]

Telecom Immunity Arguments

karrsic — 2008-01-28 20:27:10

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- ==Note:== As of January 28, 2008, the Senate is deliberating on whether to pass the Intelligence committee version of the FISA bill, without allowing amendments to be debated. Much of the media is reporting that '''FISA expires Friday''' so that a bill must be passed or the security of citizens will be threatened. It should be noted that '''FISA does not expire Friday.''' Only changes to FISA made last August, 2007, will expire Friday. FISA, which has been around since 1977 and has been amended several times (including after 9/11), will continue to be in force and spying on foreigners will continue.	+ ==January 28, 2008 Note:== + The Senate is currently deliberating on whether to pass the Intelligence committee version of the FISA bill, without allowing amendments to be debated. Much of the media is reporting that '''FISA expires Friday''' so that a bill must be passed or the security of citizens will be threatened. It should be noted that '''FISA does not expire Friday.''' Only changes to FISA made last August, 2007, will expire Friday. FISA, which has been around since 1977 and has been amended several times (including after 9/11), will continue to be in force and spying on foreigners will continue.

Telecom Immunity Arguments

karrsic — 2008-01-28 20:26:29

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- '''Note: As of January 28, 2008, the Senate is deliberating on whether to pass the Intelligence committee version of the FISA bill, without allowing amendments to be debated. Much of the media is reporting that '''FISA expires Friday''' so that a bill must be passed or the security of citizens will be threatened. It should be noted that '''FISA does not expire Friday.''' Only changes to FISA made last August, 2007, will expire Friday. FISA, which has been around since 1977 and has been amended several times (including after 9/11), will continue to be in force and spying on foreigners will continue.'''	+ ==Note:== As of January 28, 2008, the Senate is deliberating on whether to pass the Intelligence committee version of the FISA bill, without allowing amendments to be debated. Much of the media is reporting that '''FISA expires Friday''' so that a bill must be passed or the security of citizens will be threatened. It should be noted that '''FISA does not expire Friday.''' Only changes to FISA made last August, 2007, will expire Friday. FISA, which has been around since 1977 and has been amended several times (including after 9/11), will continue to be in force and spying on foreigners will continue.

Telecom Immunity Arguments

karrsic — 2008-01-28 20:25:41

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- - - ==Note: As of January 28, 2008, the Senate is deliberating on whether to pass the Intelligence committee version of the FISA bill, without allowing amendments to be debated. Much of the media is reporting that '''FISA expires Friday''' so that a bill must be passed or the security of citizens will be threatened. It should be noted that '''FISA does not expire Friday.''' Only changes to FISA made last August, 2007, will expire Friday. FISA, which has been around since 1977 and has been amended several times (including after 9/11), will continue to be in force and spying on foreigners will continue.== -	+ '''Note: As of January 28, 2008, the Senate is deliberating on whether to pass the Intelligence committee version of the FISA bill, without allowing amendments to be debated. Much of the media is reporting that '''FISA expires Friday''' so that a bill must be passed or the security of citizens will be threatened. It should be noted that '''FISA does not expire Friday.''' Only changes to FISA made last August, 2007, will expire Friday. FISA, which has been around since 1977 and has been amended several times (including after 9/11), will continue to be in force and spying on foreigners will continue.'''

Telecom Immunity Arguments

karrsic — 2008-01-28 20:25:11

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Telecom Immunity Arguments

karrsic — 2008-01-28 20:25:02

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- =Arguments in favor of Telecom Immunity and Counterarguments= - - ===[Note: As of January 28, 2008, the Senate is deliberating on whether to pass the Intelligence committee version of the FISA bill, without allowing amendments to be debated. Much of the media is reporting that '''FISA expires Friday''' so that a bill must be passed or the security of citizens will be threatened. It should be noted that '''FISA does not expire Friday.''' Only changes to FISA made last August, 2007, will expire Friday. FISA, which has been around since 1977 and has been amended several times (including after 9/11), will continue to be in force and spying on foreigners will continue.]===
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	+ ==Note: As of January 28, 2008, the Senate is deliberating on whether to pass the Intelligence committee version of the FISA bill, without allowing amendments to be debated. Much of the media is reporting that '''FISA expires Friday''' so that a bill must be passed or the security of citizens will be threatened. It should be noted that '''FISA does not expire Friday.''' Only changes to FISA made last August, 2007, will expire Friday. FISA, which has been around since 1977 and has been amended several times (including after 9/11), will continue to be in force and spying on foreigners will continue.==
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	+ + =Arguments in favor of Telecom Immunity and Counterarguments=

Telecom Immunity Arguments

karrsic — 2008-01-28 20:24:20

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- ===[Note: As of January 28, 2008, the Senate is deliberating on whether to pass the Intelligence committee version of the FISA bill, without allowing amendments to be debated. Much of the media is reporting that '''FISA expires Friday''' so that a bill must be passed or the security of citizens will be threatened. It should be noted that '''FISA does not expire Friday.''' Only changes to FISA made last August, 2007, will expire Friday. FISA, which has been around since 1977 and has been amended several times (including after 9/11), will continue to be in force and spying of foreigners will continue.]===	+ ===[Note: As of January 28, 2008, the Senate is deliberating on whether to pass the Intelligence committee version of the FISA bill, without allowing amendments to be debated. Much of the media is reporting that '''FISA expires Friday''' so that a bill must be passed or the security of citizens will be threatened. It should be noted that '''FISA does not expire Friday.''' Only changes to FISA made last August, 2007, will expire Friday. FISA, which has been around since 1977 and has been amended several times (including after 9/11), will continue to be in force and spying on foreigners will continue.]=== + +

Telecom Immunity Arguments

karrsic — 2008-01-28 20:23:29

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	+ + ===[Note: As of January 28, 2008, the Senate is deliberating on whether to pass the Intelligence committee version of the FISA bill, without allowing amendments to be debated. Much of the media is reporting that '''FISA expires Friday''' so that a bill must be passed or the security of citizens will be threatened. It should be noted that '''FISA does not expire Friday.''' Only changes to FISA made last August, 2007, will expire Friday. FISA, which has been around since 1977 and has been amended several times (including after 9/11), will continue to be in force and spying of foreigners will continue.]===

Telecom Immunity Arguments

karrsic — 2008-01-27 00:59:41

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- "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.	+ "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.

Telecom Immunity Arguments

karrsic — 2008-01-27 00:59:11

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- "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.	+ "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.

Telecom Immunity Arguments

karrsic — 2008-01-27 00:58:34

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- 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?"	+ 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?"

Telecom Immunity Arguments

karrsic — 2008-01-27 00:57:59

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- "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.	+ "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.

Telecom Immunity Arguments

karrsic — 2008-01-27 00:55:17

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- 1. '''"Good faith" violations are protected by existing law:'''	+ 1. '''"Good faith" violations are protected by existing FISA law, therefore new legislation specifically immunizing Telecoms is not necessary'''

Telecom Immunity Arguments

karrsic — 2008-01-27 00:45:02

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- 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 legislation seeks to put a halt to the legal right of citizens to litigate in support of their right to privacy as written explicitly in the law the Senators seek to amend.	+ 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, through legislative means.

Telecom Immunity Arguments

karrsic — 2008-01-27 00:42:53

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	+ 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 legislation seeks to put a halt to the legal right of citizens to litigate in support of their right to privacy as written explicitly in the law the Senators seek to amend. +

Telecom Immunity Arguments

karrsic — 2008-01-27 00:36:17

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	+ ===Counterarguments=== + 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. +

Telecom Immunity Arguments

karrsic — 2008-01-26 23:37:55

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	+ From [http://www.msnbc.msn.com/id/20884696/site/newsweek/page/0/print/1/displaymode/1098/ Newsweek:] + "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 capital 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. [http://blog.wired.com/27bstroke6/2007/10/dem-pushing-spy.html Wired]

Telecom Immunity Arguments

karrsic — 2008-01-26 23:01:32

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	+ ===Counterarguments=== + 1. Telecommunications have undertaken a massive lobbying effort in the support of immunity. This is arguably an admission of guilt. It is certainly an admission that they don't expect to win in a court of law. +

Telecom Immunity Arguments

2008-01-26 21:00:19

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- 1. '''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.	+ 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.

Telecom Immunity Arguments

karrsic — 2008-01-26 20:33:34

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- \|\|Worldcom/MCI\|\|$48B\|\|Chapter 11\|\|---\|\|Verizon	+ \|\|Worldcom/MCI\|\|$48B\|\|Chapter 11\|\|---\|\|Verizon\|\|

Telecom Immunity Arguments

karrsic — 2008-01-26 20:31:36

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	+ 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\|\| + \|\|AT&T\|\|$88B\|\|$16B\|\|$200B\|\|BellSouth;SBC;Cingular\|\| + \|\|Verizon\|\|129B\|\|$105B\|\|109B\|\|MCI\|\| + \|\|SBC\|\|$152B\|\|$81B\|\|---\|\|AT&T\|\| + \|\|BellSouth\|\|$78B\|\|$50B\|\|---\|\|AT&T\|\| + \|\|Worldcom/MCI\|\|$48B\|\|Chapter 11\|\|---\|\|Verizon + \|\|Sprint\|\|$55B\|\|$23B\|\|$26B\|\|Nextel\|\| + \|\|Qwest\|\|$56B\|\|$8B\|\|$10B\|\| \|\| + + 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. +

Telecom Immunity Arguments

karrsic — 2008-01-26 19:28:09

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- 2. AT&T's market cap is over $200 Billion - - 2. There is no evidence 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 [http://blog.wired.com/27bstroke6/2008/01/fbi-wiretap-cut.html doesn't pay its bills.]	+ 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 [http://blog.wired.com/27bstroke6/2008/01/fbi-wiretap-cut.html doesn't pay its bills.]

Telecom Immunity Arguments

karrsic — 2008-01-26 18:09:52

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- 2. Yet telecoms will not continue to provide assistance if the government doesn't pay its bills.	+ 2. There is no evidence 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 [http://blog.wired.com/27bstroke6/2008/01/fbi-wiretap-cut.html doesn't pay its bills.]

Telecom Immunity Arguments

karrsic — 2008-01-26 18:01:05

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- 1. Telecommunications companies earn hundreds of millions of dollars on government contracts. Former CEO of Qwest, Jim Naccio, describes competition among Telcos for "lucrative government contracts" and highly redacted documents suggest secret government contracts generated revenues "in the range of $150-200 million."	+ 1. Telecommunications companies earn hundreds of millions of dollars on government contracts. Former CEO of Qwest, Jim Naccio, describes proposals, contracts, government influence on M&A, and competition among Telcos for "lucrative government contracts" in [http://denver.rockymountainnews.com/pdf/business/nacchio/101007cipa/cipa2.pdf 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..."

Telecom Immunity Arguments

karrsic — 2008-01-26 17:53:02

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- 1. Yet telecoms will not continue to provide assistance if the government doesn't pay its bills.	+ 1. Telecommunications companies earn hundreds of millions of dollars on government contracts. Former CEO of Qwest, Jim Naccio, describes competition among Telcos for "lucrative government contracts" and highly redacted documents suggest secret government contracts generated revenues "in the range of $150-200 million." + + 2. AT&T's market cap is over $200 Billion + + 2. Yet telecoms will not continue to provide assistance if the government doesn't pay its bills.

Telecom Immunity Arguments

2008-01-26 16:49:17

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- '''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 loathe to comply with future requests out of fear of lawsuits.'''	+ '''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.'''

Telecom Immunity Arguments

2008-01-26 16:43:23

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- "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 rouges. This isn't Joe's Phone Company. They are very sophisticated and know the law better than almost everyone.	+ "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.

Telecom Immunity Arguments

karrsic — 2008-01-26 16:37:39

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- 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.	+ '''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.'''
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- 2. '''Some telecom companies refused to cooperate because they were concerned about the programs legality:''' - "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."[#site1 1] - "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."^1^ - "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."^1^ - "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."^1^ [Note that this request was reportedly prior to 9/11.]	+ 2. '''Some telecom companies refused to cooperate because they were concerned about the programs legality''' + From [http://www.nytimes.com/2007/12/16/washington/16nsa.html?pagewanted=2&_r=1&hp ''Wider Spying Fuels Aid Plan for Telecom Industry'' by By ERIC LICHTBLAU, JAMES RISEN and SCOTT SHANE, Washington Post] + + "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 was reportedly prior to 9/11.]
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- 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.	+ '''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.'''
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- 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.	+ '''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.'''
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- 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.	+ '''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.'''
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- 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 loathe to comply with future requests out of fear of lawsuits.	+ '''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 loathe to comply with future requests out of fear of lawsuits.'''
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- 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.	+ '''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.'''
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- 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.	+ '''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.'''
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- "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."	+ "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."
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- "The court also declines to decide at this time whether - this case should be dismissed on the ground that the government’s - state secrets assertion will preclude evidence necessary for - plaintiffs to establish a prima facie case or for AT&T to raise a - valid defense to the claims. Plaintiffs appear to be entitled to - at least some discovery. See infra I(G)(3). It would be premature - to decide these issues at the present time. In drawing this - conclusion, the court is following the approach of the courts in - Halkin v Helms and Ellsberg v Mitchell; these courts did not - dismiss those cases at the outset but allowed them to proceed to - discovery sufficiently to assess the state secrets privilege in - light of the facts. The government has not shown why that should - not be the course of this litigation."	+ "The court also declines to decide at this time whether this case should be dismissed on the ground that the government’s state secrets assertion will preclude evidence necessary for plaintiffs to establish a prima facie case or for AT&T to raise a valid defense to the claims. Plaintiffs appear to be entitled to at least some discovery. See infra I(G)(3). It would be premature to decide these issues at the present time."
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- 3. How can proponents argue on the one hand that the defendants cannot defend themselves, because they cannot reveal state secrets, but then argue on the other hand that state secrets will be revealed?	+ 3. 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, but then argue on the other hand that state secrets will be revealed?
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- 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.	+ '''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.'''
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- Congress should not condone oversight through litigation.	+ '''Congress should not condone oversight through litigation.'''
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- 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.	+ '''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.'''
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- - - [[(site1)]] - [http://www.nytimes.com/2007/12/16/washington/16nsa.html?pagewanted=2&_r=1&hp ''Wider Spying Fuels Aid Plan for Telecom Industry'' by By ERIC LICHTBLAU, JAMES RISEN and SCOTT SHANE, Washington Post]

Telecom Immunity Arguments

karrsic — 2008-01-25 22:41:21

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- 1. '''Congress should 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.	+ 1. '''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.

Telecom Immunity Arguments

karrsic — 2008-01-25 17:05:28

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	+ 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? +

Telecom Immunity Arguments

karrsic — 2008-01-25 16:51:38

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	+ 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 (by, for instance, following legal process) and that evidence exists (Presidential request, Attorney General approval, etc.) that shows the telecommunications firms acted legally. 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.

Telecom Immunity Arguments

karrsic — 2008-01-25 07:00:31

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- "In sum, for much the same reasons that Totten does not - preclude this suit, the very subject matter of this action is not a - “secret” for purposes of the state secrets privilege and it would - be premature to conclude that the privilege will bar evidence - necessary for plaintiffs’ prima facie case or AT&T’s defense. - Because of the public disclosures by the government and AT&T, the - court cannot conclude that merely maintaining this action creates a - “reasonable danger” of harming national security. Accordingly, - based on the foregoing, the court DENIES the government’s motion to - dismiss."	+ "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. Judge Walker also notes that though plaintiffs have the right to discovery, the state secrets privilege may be applied to specific evidence. + + "The court also declines to decide at this time whether + this case should be dismissed on the ground that the government’s + state secrets assertion will preclude evidence necessary for + plaintiffs to establish a prima facie case or for AT&T to raise a + valid defense to the claims. Plaintiffs appear to be entitled to + at least some discovery. See infra I(G)(3). It would be premature + to decide these issues at the present time. In drawing this + conclusion, the court is following the approach of the courts in + Halkin v Helms and Ellsberg v Mitchell; these courts did not + dismiss those cases at the outset but allowed them to proceed to + discovery sufficiently to assess the state secrets privilege in + light of the facts. The government has not shown why that should + not be the course of this litigation." + + 3. How can proponents argue on the one hand that the defendants cannot defend themselves, because they cannot reveal state secrets, but then argue on the other hand that state secrets will be revealed?

Telecom Immunity Arguments

karrsic — 2008-01-25 06:50:05

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- 1. Judge Walker has [http://209.85.173.104/search?q=cache:9FTVo-eutzcJ:www.eff.org/files/filenode/att/308_order_on_mtns_to_dismiss.pdf+judge+walker+%22good+faith%22&hl=en&ct=clnk&cd=1&gl=us refused to dismiss]: the case against AT&T due to the "state secret" claim.	+ 1. Judge Walker has [http://209.85.173.104/search?q=cache:9FTVo-eutzcJ:www.eff.org/files/filenode/att/308_order_on_mtns_to_dismiss.pdf+judge+walker+%22good+faith%22&hl=en&ct=clnk&cd=1&gl=us denied] the motion to dismiss the case against AT&T due to the "state secret" claim. He writes: + "In sum, for much the same reasons that Totten does not + preclude this suit, the very subject matter of this action is not a + “secret” for purposes of the state secrets privilege and it would + be premature to conclude that the privilege will bar evidence + necessary for plaintiffs’ prima facie case or AT&T’s defense. + Because of the public disclosures by the government and AT&T, the + court cannot conclude that merely maintaining this action creates a + “reasonable danger” of harming national security. Accordingly, + based on the foregoing, the court DENIES the government’s motion to + dismiss."

Telecom Immunity Arguments

karrsic — 2008-01-25 06:41:07

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	+ 1. Yet telecoms will not continue to provide assistance if the government doesn't pay its bills. +
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- 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 company. Other companies and industries will also be loathe to comply with future requests out of fear of lawsuits.	+ 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 loathe to comply with future requests out of fear of lawsuits. + + ===Counterarguments=== + 1. If the government issues warrants, the telecom communications companies '''must''' comply or they will be breaking the law.
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	+ + ===Counterarguments=== + 1. Judge Walker has [http://209.85.173.104/search?q=cache:9FTVo-eutzcJ:www.eff.org/files/filenode/att/308_order_on_mtns_to_dismiss.pdf+judge+walker+%22good+faith%22&hl=en&ct=clnk&cd=1&gl=us refused to dismiss]: the case against AT&T due to the "state secret" claim.

Telecom Immunity Arguments

karrsic — 2008-01-25 06:24:29

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- 3.	+ 3. At least one telecom company felt that the NSA request was not legal. For Qwest CEO, Joseph Nacchio, issued the following statement ([http://209.85.173.104/search?q=cache:9FTVo-eutzcJ:www.eff.org/files/filenode/att/308_order_on_mtns_to_dismiss.pdf+judge+walker+%22good+faith%22&hl=en&ct=clnk&cd=1&gl=us 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." +

Telecom Immunity Arguments

karrsic — 2008-01-25 06:18:18

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	+ 4. Some telecom companies have [http://bellsouth.mediaroom.com/index.php?s=press_releases&item=2860 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" +

Telecom Immunity Arguments

karrsic — 2008-01-25 05:50:43

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- "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."[#1 1]	+ "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."[#site1 1]
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	+
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	+ 1. '''Congress should 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. +
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	+ ===Counterarguments=== + 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.
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- - [[(1)]]	+ [[(site1)]]

Telecom Immunity Arguments

karrsic — 2008-01-25 05:39:53

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- 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 [http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001810----000-.html 1810] :	+ 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 [http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001810----000-.html 50 U.S.C. 1810] :

Telecom Immunity Arguments

karrsic — 2008-01-25 05:38:10

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- 2. This is not Constitutional law, but rather Federal law, written and passed by the U.S. Congress explicitly for the purpose of providing rules by which the government and Telecommunications companies must adhere when conducting surveillance activities.	+ 2. This is not Constitutional law, but rather Federal law, written and passed by the U.S. Congress explicitly for the purpose of providing rules by 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 rouges. 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.
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	+ ===Counterarguments=== + 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 [http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001810----000-.html 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."

Telecom Immunity Arguments

karrsic — 2008-01-24 15:10:19

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- 1. "Good faith" violations are protected by existing law:	+ 1. '''"Good faith" violations are protected by existing law:'''
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	+ + In the November 19, 2007 NSA of 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.

Telecom Immunity Arguments

karrsic — 2008-01-24 14:50:53

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- 2. This is not Constitutional law, but rather law, written and passed by the U.S. Congress explicitly for the purpose of providing rules by which the government and Telecommunications companies must adhere when conducting surveillance activities.	+ 2. This is not Constitutional law, but rather Federal law, written and passed by the U.S. Congress explicitly for the purpose of providing rules by which the government and Telecommunications companies must adhere when conducting surveillance activities.

Telecom Immunity Arguments

karrsic — 2008-01-24 14:50:21

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- 1. 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. That section of long-standing law could not be clearer, and leaves no doubt that Rockefeller is simply lying when he says that telecoms are unable to submit secret evidence to the court to defend themselves:	+ 1. 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.
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- [W]henever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority, 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.	+ "[W]henever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority, 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."

Telecom Immunity Arguments

karrsic — 2008-01-24 14:49:31

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- 1. The federal judge who is considering all of the lawsuits against communications carriers has already held that the common - law state secrets privilege does not prevent phone companies like AT&T from presenting their defenses to the court.	+ 1. 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. That section of long-standing law could not be clearer, and leaves no doubt that Rockefeller is simply lying when he says that telecoms are unable to submit secret evidence to the court to defend themselves: + + [W]henever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority, 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.

Telecom Immunity Arguments

karrsic — 2008-01-24 02:51:03

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- ===Counterargument===	+ ===Counterarguments===
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- ===Counterargument===	+ ===Counterarguments===
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	+ + ===Counterarguments=== + 1. The federal judge who is considering all of the lawsuits against communications carriers has already held that the common + law state secrets privilege does not prevent phone companies like AT&T from presenting their defenses to the court. + + 2. As Constitutional Law lawyer [http://www.salon.com/opinion/greenwald/ Glenn Greenwald] [http://www.salon.com/opinion/greenwald/2007/10/31/rockefeller/index.html?source=search&aim=/opinion/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. Facts demonstrating the illegal surveillance are already public. The Bush administration has admitted openly that it spied on Americans without warrants. The [www.eff.org Electronic Frontier Foundation] has [http://www.eff.org/files/nsa/att.pdf documents[ detailing AT&T's complicity with the NSA's warrantless surveillance. +

Telecom Immunity Arguments

karrsic — 2008-01-24 01:47:18

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- 2. This is not Constitutional law, but Congressional legislation explicitly written to provide laws by which government and Telecom communities must adhere when conducting surveillance activities. - -	+ 2. This is not Constitutional law, but rather law, written and passed by the U.S. Congress explicitly for the purpose of providing rules by which the government and Telecommunications companies must adhere when conducting surveillance activities.

Telecom Immunity Arguments

karrsic — 2008-01-23 07:04:51

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- § 2520. Recovery of civil damages authorized -
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- 1. "Good faith" violations are protected by existing	+ 1. "Good faith" violations are protected by existing law: + "(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." + ([http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002520----000-.html 18 U.S.C. 2520 part (d)]) + + 2. This is not Constitutional law, but Congressional legislation explicitly written to provide laws by which government and Telecom communities must adhere when conducting surveillance activities. + +

Telecom Immunity Arguments

karrsic — 2008-01-23 06:59:39

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- 1. Relevant Law: [http://www4.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000222----000-.html Section 222] of the [http://www4.law.cornell.edu/uscode/html/uscode47/usc_sup_01_47.html Communications Act of 1934] provides that "[e]very telecommunications carrier has a duty to protect the confidentiality of proprietary information of . . . customers." [http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002511----000-.html 18 U.S.C. 2511] makes warrantless eavesdropping a felony; [http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002702----000-.html 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 [http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002520----000-.html 18 U.S.C. 2520] provides for civil damages for any violations.	+ 1. '''Relevant Law:''' [http://www4.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000222----000-.html Section 222] of the [http://www4.law.cornell.edu/uscode/html/uscode47/usc_sup_01_47.html Communications Act of 1934] provides that "[e]very telecommunications carrier has a duty to protect the confidentiality of proprietary information of . . . customers." [http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002511----000-.html 18 U.S.C. 2511] makes warrantless eavesdropping a felony; [http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002702----000-.html 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.
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- 2. Some telecom companies refused to cooperate because they were concerned about the programs legality:	+ 2. '''Some telecom companies refused to cooperate because they were concerned about the programs legality:'''
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- 3. In the United States system of law, the job of the courts is to determine guilt, and subsequent criminal or civil liability. If in fact, the telecommunications companies did nothing wrong, then they will not be found liable. This is how the system works. It is not the Constitutional responsibility of the legislative branch to create new laws, which serve only to retroactively ascertain that certain acts committed against previous law are somehow not subject to that very law.	+ 3. '''The Rule of Law''' In the United States system of law, the job of the courts is to determine guilt, and subsequent criminal or civil liability. If in fact, the telecommunications companies did nothing wrong, then they will not be found liable. This is how the system works. It is not the Constitutional responsibility of the legislative branch to create new laws, which serve only to retroactively ascertain that certain acts committed against previous law are somehow not subject to that very law. Further, the 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." ([http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002520----000-.html 18 U.S.C. 2520]) + + § 2520. Recovery of civil damages authorized
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	+ + ===Counterargument=== + 1. "Good faith" violations are protected by existing

Telecom Immunity Arguments

karrsic — 2008-01-23 06:52:29

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- 1. [http://www4.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000222----000-.html Section 222] of the [http://www4.law.cornell.edu/uscode/html/uscode47/usc_sup_01_47.html Communications Act of 1934] provides that "[e]very telecommunications carrier has a duty to protect the confidentiality of proprietary information of . . . customers." [http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002511----000-.html 18 U.S.C. 2511] makes warrantless eavesdropping a felony; [http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002702----000-.html 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 [http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002520----000-.html 18 U.S.C. 2520] provides for civil damages for any violations.	+ 1. Relevant Law: [http://www4.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000222----000-.html Section 222] of the [http://www4.law.cornell.edu/uscode/html/uscode47/usc_sup_01_47.html Communications Act of 1934] provides that "[e]very telecommunications carrier has a duty to protect the confidentiality of proprietary information of . . . customers." [http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002511----000-.html 18 U.S.C. 2511] makes warrantless eavesdropping a felony; [http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002702----000-.html 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 [http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002520----000-.html 18 U.S.C. 2520] provides for civil damages for any violations.
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	+ + 3. In the United States system of law, the job of the courts is to determine guilt, and subsequent criminal or civil liability. If in fact, the telecommunications companies did nothing wrong, then they will not be found liable. This is how the system works. It is not the Constitutional responsibility of the legislative branch to create new laws, which serve only to retroactively ascertain that certain acts committed against previous law are somehow not subject to that very law.

Telecom Immunity Arguments

karrsic — 2008-01-23 06:39:29

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- "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."^[#anchor1 1]^	+ "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."[#1 1]
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- [[(anchor1)]]	+ [[(1)]]

Telecom Immunity Arguments

karrsic — 2008-01-23 06:38:41

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- "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."[#anchor1 ^1^]	+ "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."^[#anchor1 1]^
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- [(anchor1)] [http://www.nytimes.com/2007/12/16/washington/16nsa.html?pagewanted=2&_r=1&hp ''Wider Spying Fuels Aid Plan for Telecom Industry'' by By ERIC LICHTBLAU, JAMES RISEN and SCOTT SHANE, Washington Post]	+ [[(anchor1)]] + [http://www.nytimes.com/2007/12/16/washington/16nsa.html?pagewanted=2&_r=1&hp ''Wider Spying Fuels Aid Plan for Telecom Industry'' by By ERIC LICHTBLAU, JAMES RISEN and SCOTT SHANE, Washington Post]

Telecom Immunity Arguments

karrsic — 2008-01-23 06:35:45

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- "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."[#anchor1 1]	+ "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."[#anchor1 ^1^]
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- [[(anchor1)]] [http://www.nytimes.com/2007/12/16/washington/16nsa.html?pagewanted=2&_r=1&hp ''Wider Spying Fuels Aid Plan for Telecom Industry'' by By ERIC LICHTBLAU, JAMES RISEN and SCOTT SHANE, Washington Post]	+ [(anchor1)] [http://www.nytimes.com/2007/12/16/washington/16nsa.html?pagewanted=2&_r=1&hp ''Wider Spying Fuels Aid Plan for Telecom Industry'' by By ERIC LICHTBLAU, JAMES RISEN and SCOTT SHANE, Washington Post]

Telecom Immunity Arguments

karrsic — 2008-01-23 06:33:47

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- "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."^[#anchor1 1]^	+ "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."[#anchor1 1]
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- [[(anchor1)]] [http://www.nytimes.com/2007/12/16/washington/16nsa.html?pagewanted=2&_r=1&hp New York Times "Wider Spying Fuels Aid Plan for Telecom Industry]	+ [[(anchor1)]] [http://www.nytimes.com/2007/12/16/washington/16nsa.html?pagewanted=2&_r=1&hp ''Wider Spying Fuels Aid Plan for Telecom Industry'' by By ERIC LICHTBLAU, JAMES RISEN and SCOTT SHANE, Washington Post]

Telecom Immunity Arguments

karrsic — 2008-01-23 06:29:48

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- "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."^1^	+ "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."^[#anchor1 1]^
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	+ + + + + [[(anchor1)]] [http://www.nytimes.com/2007/12/16/washington/16nsa.html?pagewanted=2&_r=1&hp New York Times "Wider Spying Fuels Aid Plan for Telecom Industry]

Telecom Immunity Arguments

karrsic — 2008-01-23 06:25:28

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- 1. Some telecom companies refused to cooperate because they were concerned about the programs legality. "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."^1^	+ 1. [http://www4.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000222----000-.html Section 222] of the [http://www4.law.cornell.edu/uscode/html/uscode47/usc_sup_01_47.html Communications Act of 1934] provides that "[e]very telecommunications carrier has a duty to protect the confidentiality of proprietary information of . . . customers." [http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002511----000-.html 18 U.S.C. 2511] makes warrantless eavesdropping a felony; [http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002702----000-.html 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 [http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002520----000-.html 18 U.S.C. 2520] provides for civil damages for any violations. + + 2. Some telecom companies refused to cooperate because they were concerned about the programs legality: + "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."^1^

Telecom Immunity Arguments

karrsic — 2008-01-23 06:14:25

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	+ ===Counterargument=== + 1. Some telecom companies refused to cooperate because they were concerned about the programs legality. "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."^1^ + "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."^1^ + "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."^1^ + "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."^1^ [Note that this request was reportedly prior to 9/11.]

Telecom Immunity Arguments

karrsic — 2008-01-23 06:03:59

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- =Arguments in favor of Telecom Immunity=	+ =Arguments in favor of Telecom Immunity and Counterarguments=

Telecom Immunity Arguments

karrsic — 2008-01-23 06:00:37

Renamed from "FISA Debate Summary"

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	+ =Arguments in favor of Telecom Immunity= + + ==Argument 1== + 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. + + ==Argument 2== + 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. + + ==Argument 3== + 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. + + ==Argument 4== + 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. + + ==Argument 5== + 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 company. Other companies and industries will also be loathe to comply with future requests out of fear of lawsuits. + + ==Argument 6== + 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. + + ==Argument 7== + 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. + + ==Argument 8== + 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. + + ==Argument 9== + Congress should not condone oversight through litigation. + + ==Argument 10== + 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.