Senators Look To Remove Telco Retroactive Immunity For Warrantless Wiretaps

from the no-get-out-of-jail-free-card dept

Mon, Sep 28th 2009 5:55pm — Mike Masnick

Even as the Obama administration is still supporting immunity for the telcos who gave the gov't wiretap info without any warrants, a group of Senators has now introduced legislation that would repeal the immunity. The simplest explanation for this:

"Congress should not have short-circuited the courts' constitutional role in assessing the legality of the program."

Indeed. If the programs were actually legal, then let a court say that. If the programs were illegal, then there is no good reason to have made the telcos immune.

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Filed Under: telco immunity, telcos, warrantless wiretapping

23 Comments

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Dark Helmet (profile), 28 Sep 2009 @ 5:59pm

Sigh
"a group of Senators has now introduced legislation that would repeal the immunity"

Every bit as meaningless as "save the children" legislation, because it won't accomplish anything. Either it will be shot down, include some provision for Executive Review that can be stricken, or the necessary evidence will just "disappear" a la a portion of JFK's brain.

What an exercise in futility...
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Cyanid Pontifex (profile), 28 Sep 2009 @ 6:00pm

Wouldn't repealing the immunity be considered Ex Post Facto? While I think that the retroactive immunity should not have been given, I think that legislatively repealing this immunity would be unconstitutional, however appealing it may be.
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ChurchHatesTucker (profile), 28 Sep 2009 @ 6:01pm

Re: Sigh
Meh, better they spend time on this than "National Orphans Day."
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ChurchHatesTucker (profile), 28 Sep 2009 @ 6:22pm

Re: Re: Sigh
Wait, got that backwards. Better they spend time on Orphans' Day.
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Anonymous Coward, 28 Sep 2009 @ 6:45pm

I'm confused about Telco immunity, shouldn't people in the government that knew what was going on be held accountable as well, I haven't heard of any prosecutions or any talk of prosecutions for any one inside the government.
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Dark Helmet (profile), 28 Sep 2009 @ 6:55pm

Re:
That's because the trial against the telcos is a means to that very end. They need to prove criminal behavior by the Telcos to prove that the government acted poorly in granting them immunity (namely by WHO they were tapping, since the suspicion is that it was average American citizens).

The Bush administration retroactively granted them immunity to avoid at least embarrassment, more likely prosecution.

What they did was unconstitutional, plain and simple.
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Anonymous Coward, 28 Sep 2009 @ 8:32pm

Ooh, techdirt is now filled with spam, nice!
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Freedom, 28 Sep 2009 @ 8:48pm

Great News!
That is great news to me! This has been a major downer for me for a long time. It was one of my major hopes with Obama that he wouldn't support this same BS and it was a major let down when he did. The next was when he promised to be open and post all legislation for comment before signing. Basically, at the end of the day, he promised change and we got a bunch of the same old crap in different wrapper.

Oligarchy - here we come!

Freedom
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Anonymous Coward, 28 Sep 2009 @ 8:57pm

Re: Re:
The Bush administration did not grant immunity. It was granted via legislation enacted by Congress.

As an aside, it seems doubtful that the grant of immunity to the telcos is a slam dunk case of unconstitutionality. I rather doubt that as to the telcos the law would be viewed as a Bill of Atainder or an Ex Post Facto law.

As to the persons engaged in litigation against certain telcos at the time immunity was granted, perhaps they may have good legal arguments that rights conferred to them by then law were summarily taken away.

Make no mistake. Telco immunity is not a matter of attempts to commence criminal proceedings against the telcos. It is primarily a civil matter in which trial lawyers for plaintiffs are trying to resurrect lawsuits against "deep pockets" since in large measure the USG is may seek protection from civil liability under the doctrine of sovereign immunity. Is this really about civil liberties. I submit it is not. It is really about civil lawsuits and the hope for large damage awards.
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Cyanid Pontifex (profile), 28 Sep 2009 @ 10:33pm

Re: Re: Re:
I'm not saying that the immunity itself was Ex Post Facto. I'm saying that there's a good chance that revoking the immunity would be Ex Post Facto.
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Anonymous Coward, 28 Sep 2009 @ 10:53pm

Be careful what you wish for
If it becomes common practice for the US government to pass laws making a practice that was legal in the past, even if that practice was only "technically" legal and not "morally" or "ethically" legal, think about where that might lead.

As long on your guy and your party was in power, it might seem like a good idea, but what might happen if or when the people that you don't like came to power? Or the people that don't like you?

Not being able to change the past keeps revenge and retribution a little more under control.
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Anonymous Coward, 28 Sep 2009 @ 10:56pm

Correction of typo in previous post
OOPS - The sentence that reads 'If it becomes common practice for the US government to pass laws making a practice that was legal in the past, even if that practice was only "technically" legal and not "morally" or "ethically" legal, think about where that might lead.' should read 'If it becomes common practice for the US government to pass laws making a practice that was legal in the past retroactively illegal, even if that practice was only "technically" legal and not "morally" or "ethically" legal, think about where that might lead.'
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Mike Masnick (profile), 28 Sep 2009 @ 11:12pm

Re: Correction of typo in previous post
'If it becomes common practice for the US government to pass laws making a practice that was legal in the past retroactively illegal, even if that practice was only "technically" legal and not "morally" or "ethically" legal, think about where that might lead.'

But that's now what they're doing. They're taking a practice that was illegal, and making it RETROACTIVELY immune from any prosecution. And then potentially removing that.

Nothing that was legal is being made retroactively illegal. The actions were almost certainly illegal at the time. The question is whether or not cases can be brought on this.
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Mike Masnick (profile), 28 Sep 2009 @ 11:13pm

Re: Re: Re:
Make no mistake. Telco immunity is not a matter of attempts to commence criminal proceedings against the telcos. It is primarily a civil matter in which trial lawyers for plaintiffs are trying to resurrect lawsuits against "deep pockets"

Yeah, that EFF and ACLU... that's EXACTLY what they were up to. How did you figure it out?
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Dark Helmet (profile), 29 Sep 2009 @ 6:44am

Re: Re: Re:
"The Bush administration did not grant immunity. It was granted via legislation enacted by Congress."

Technically correct, but ultimately bullshit. Congress HAD to approve to put it into law, but it was the new FISA Bill practically WRITTEN by the Bush administration that granted retroactive immunity. So, yeah, the Bush administration did it, and now Obama is backing him up like a good little globalist.

"As an aside, it seems doubtful that the grant of immunity to the telcos is a slam dunk case of unconstitutionality."

Sorry, but yeah it is. The only question arose because Bush and Cheney muddied the waters by claiming that since ONE of the parties communicating was PROBABLY outside of the country, that counted as foreign surveillance. As soon as it was domestic surveillance, bingo! it was unconstitutional under both Article 1 and 2. The President essentially precluded Congress from making law domestically by enforcing rule AGAINST domestic law, and he failed to "take Care that the Laws be faithfully executed".

The Supreme Court held in Katz v. United States that a wiretap constituted a search, and almost always required a previously attained warrant to procede. By any reasonable definition, the wiretaps stomped all over the fourth amendment.

The attempt to retroactively grant immunity and hide evidence of the actions of the Executive Branch bring to bear issues of the balance of powers, since the Bush team basically took away the ability for the Judicial branch to operate in this case and has also raised serious questions regarding the choking out of judicial review, one of the most important functions of the Judicial Branch.

"It is primarily a civil matter in which trial lawyers for plaintiffs are trying to resurrect lawsuits against "deep pockets" since in large measure the USG is may seek protection from civil liability under the doctrine of sovereign immunity."

I humbly disagree. It isn't about getting money. It's about turning the light on the kitchen and watching the cockroaches scurry, then pointing the flashlight in all of the corners where they hide. Utilizing the doctrine of sovereign immunity would probably be the last dark, dirty place the Bush administration could hide. It would basically be an admission of guilt on the part of the Bush team, a huge chunk of congress, the Obama team for backing them, several major telco firms, and perhaps some others as well.

It could finally be the straw that breaks the camel's back and creates real, actual change.
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hegemon13, 29 Sep 2009 @ 7:35am

Re:
"Wouldn't repealing the immunity be considered Ex Post Facto?"

No, I don't believe so. The immunity was not granted by the courts as the result of a trial, nor was it in effect at the time the crime was (allegedly) committed. If there had been immunity in place at the time, I would agree with you, but that is not the case. Last, the telcos did not "make a deal," where they gave something up in order to receive immunity. It was a gift to protect the administration. So, really, if immunity is repealed, I don't see anything stopping it from going to trial.

Of course, IANAL, so who knows what strange and scary surprises our legal system holds.
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Anonymous Coward, 29 Sep 2009 @ 10:00am

Re: Re: Re: Re:
The EFF and ACLU do not give a "rodent's rear" about the fact immunity has been granted to telcos. What they do care about is that by doing so several plaintiff's had the rug for their lawsuits pulled out from under their feet. The groups are seeking to establish a path by which the case can find its way to the Supreme Court to decide whether or not Congress has the lawful power under Article 1 to remove after the fact the jurisdiction of courts to hear and try cases that at the time of filing were properly and lawfully presented to the courts.

The question is one of law that in this case just happens to be associated with telcos.
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Mike Masnick (profile), 29 Sep 2009 @ 10:29am

Re: Re: Re: Re: Re:
The EFF and ACLU do not give a "rodent's rear" about the fact immunity has been granted to telcos. What they do care about is that by doing so several plaintiff's had the rug for their lawsuits pulled out from under their feet. The groups are seeking to establish a path by which the case can find its way to the Supreme Court to decide whether or not Congress has the lawful power under Article 1 to remove after the fact the jurisdiction of courts to hear and try cases that at the time of filing were properly and lawfully presented to the courts.

Yes, that's why they were involved in these lawsuits well before immunity was even discussed.... Oops.

They do care about warrantless wiretapping quite a bit.

But, yes, now that the immunity card has been played, they care about the retroactive change as well.
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Anonymous Coward, 29 Sep 2009 @ 11:58am

Re: Re: Re: Re: Re: Re:
Of course they care about wireless wiretapping, but they are not trial lawyers representing claims on behalf of clients...and in the final analysis these clients have every reason to be upset that their civil law claims were taken off the "judicial table".

Does anyone seriously believe that the repeal of immunity by Congress was instigated in the first instance by anyone other than trial lawyer groups? Neither the EFF nor the ACLU carry that kind of weight before Congress. The ATLA most certainly does.
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PrometheeFeu (profile), 29 Sep 2009 @ 12:43pm

I think immunity in this case makes sense. If the government comes to you and tells you to do something and you do it, you are effectively doing it under duress. The people responsible are those that ordered the wiretapping. Not those that own the wires...
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Dark Helmet (profile), 29 Sep 2009 @ 1:11pm

Re:
Uh, at some point somebody is gonna have to tell the government "no". Who better to do that than the ones holding the weapons the government wants to use?

Even armed soldiers are allowed to refuse an unjust order.
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Anonymous Coward, 30 Sep 2009 @ 7:00am

Re:
If the government comes to you and tells you to do something and you do it, you are effectively doing it under duress.

Ah yes, the Nazi Nuremberg Defense. Didn't fly then, doesn't fly now.
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Anonymous Coward, 30 Sep 2009 @ 8:26pm

Re: Re: Correction of typo in previous post
I understand your point but justifying a bad idea by saying that it's undoing a previously bad idea is still not a good path to take. If a practice like this becomes institutionalized in Washington, they'll be pressing the Undo button every time that Congress changes hands. I think we should say "The retroactive immunity deal was a bad idea and we won't do that anymore."
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