Bush administration proposes retroactive immunity for phone companies

[<rms () computerbytesman com>]

http://arstechnica.com/news.ars/post/20070504-bush-administration-proposes-r
etroactive-immunity-for-phone-companies.html


Bush administration proposes retroactive immunity for phone companies


By Nate Anderson <http://arstechnica.com/authors.ars/Nate+Anderson>  |
Published: May 04, 2007 - 01:33PM CT 

Retroactive immunity from prosecution is a beautiful thing if you're a major
telecommunications provider in the US, and phone companies are about to
receive it if the Bush administration gets its way. The administration's new
appropriations request for intelligence agencies was recently disclosed at a
hearing of the Senate Select Committee on Intelligence, and it includes a
massive gift to the phone companies who have been (can we drop the
"allegedly" at this point?) helping the NSA and other agencies. Prepare
yourself for the longest single sentence you have ever read: 

Notwithstanding any other law, and in addition to the immunities,
privileges, and defenses provided by any other source of law, no action
shall lie or be maintained in any court, and no penalty, sanction, or other
form of remedy or relief shall be imposed by any court or any other body,
against any person for the alleged provision to an element of the
intelligence community of any information (including records or other
information pertaining to a customer), facilities, or any other form of
assistance, during the period of time beginning on September 11, 2001, and
ending on the date that is the effective date of this Act, in connection
with any alleged classified communications intelligence activity that the
Attorney General or a designee of the Attorney General certifies, in a
manner consistent with the protection of State secrets, is, was, would be,
or would have been intended to protect the United States from a terrorist
attack. 

That's from section 408 of the proposed bill, and it's buried beneath the
innocuous headline "Liability Defense." As the government explains later in
an analysis of the bill, "companies that cooperate with the Government in
the war on terror deserve our appreciation and protection-not litigation."
Any court case dealing with the issue would be thrown out of court, and the
protection would include all phone company interaction with the intelligence
community since September 11. 

The issue of whether any of this behavior was legal is not important. The
government has already argued that legality
<http://arstechnica.com/news.ars/post/20060621-7101.html>  doesn't matter
when it comes to the phone companies, since even a ruling that their actions
were illegal would expose the existence of the intelligence-gathering
program in question. Therefore, such cases should not even be considered by
the courts. 

Kenneth Wainstein, an assistant attorney general at the Department of
Justice, told the assembled Senators that this provision of the bill would
simply "fill a gap in our laws" by allowing the phone companies to assist
the government. 

When news of the NSA's alleged wiretapping of American firms (with their
knowledge) broke back in 2005, we reported
<http://arstechnica.com/news.ars/post/20051220-5808.html>  on the powerful
technology apparently being deployed inside secret rooms
<http://arstechnica.com/news.ars/post/20060412-6585.html>  at telco
facilities. Despite the fact that this raised all sorts of questions about
domestic surveillance and legality, Congress decided that it simply wasn't
worth <http://arstechnica.com/news.ars/post/20060607-7008.html>  looking
into after hearing from Vice President Cheney about the matter. 

With Congress unwilling to figure out what was going on, individuals and
advocacy groups began filing lawsuits
<http://arstechnica.com/news.ars/post/20060515-6829.html>  against the phone
companies. The EFF and others argued that communications privacy laws had
been violated, but the government countered by claiming that a "state
secrets" privilege meant that the cases should simply be thrown out. Though
some cases were dismissed, the EFF's case against AT&T continues, though it
would also be dismissed if the proposed new legislation passes. 

With the Democrats now holding much more power, though, it's not clear that
the blanket immunity grant will survive. However, the bill itself needs to
pass in some form in order to keep funding the US intelligence apparatus. 

 

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