Immunity for Telecom Compliance in Warrantless Spying ?

Immunity for Telecom Compliance in Warrantless Spying ?

The Senate Judiciary Committee was supposed to vote today on a bill to amend the Foreign Intelligence Surveillance Act, but the vote has been pushed back to next week to give lawmakers more time to consider proposed amendments. One of the key disputes is whether to grant immunity to the telephone and internet service providers who are accused of illegally participating in the NSA's warrantless surveillance programs. Immunity would end lawsuits by state public utility commissions and civil liberties groups (among them my former employer the Electronic Frontier Foundation) which charge the telecoms with turning over massive amounts of user data to the government in violation of the Electronic Communications Privacy Act (ECPA), among other laws. The government and the telecoms in those cases have thus far been unsuccessful in trying to get the cases thrown out on the grounds that the possible surveillance is a state secret, so now it appears the telecom lobbyists are trying to win in Washington instead.

I won't pretend to be neutral on this issue; I went to law school because I believe, in a fundamental and probably naïve way, in the rule of law. If you go to court and you lose, you shouldn't be able to buy yourself a get out of jail free card by donating to congressional reelection funds.

Mark Klein, the AT&T technician who blew the whistle on that company turning over millions of email and phone communications to the NSA, went to DC this week to make the same point directly to Congress. He told the Washington Post, "If they've done something massively illegal and unconstitutional -- well, they should suffer the consequences. It's not my place to feel bad for them. They made their bed, they have to lie in it. The ones who did [anything wrong], you can be sure, are high up in the company. Not the average Joes, who I enjoyed working with."

Instead of blanket immunity, some lawmakers are tossing around the idea of indemnification – the telecoms would still litigate the cases against them, but the government would pay any damages. Another compromise proposal would have the government substitute for the telecoms, stepping into their place in the lawsuits. Either of these proposals would permit the cases to continue, which would allow us the public to find out just how extensive the alleged surveillance was.



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Whatever happened to Article 1, section 9 of the US Constitution? It states, "No Bill of Attainder or ex post facto Law shall be passed." In other words - you can't change the rules "after the fact" (ex post facto).

It was written with an assumption that a corrupted government would try to change the rules to convict a person - but isn't that the essence of what is happening, only on a broader scale?



Ex post facto laws are laws that subject people to criminal liability after the fact, by punishing you for doing something yesterday that wasn't illegal at the time you did it. It's rooted in the fairness and due process ideas that you can't be expected to comply with laws you had no way of knowing would exist. What's going on here is the opposite -- removing punishment after the fact, which is not unconstitutional. Congress can certainly decriminalize things or remove courts' ability to hear them, and retroactive immunity doesn't impose the kind of burden that retroactive punishment does. Not that it wouldn't be nice if, in this case, Congress couldn't retroactively take away a protection for those of us who may have been spied on.

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