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Telecom Companies Seek Retroactive Immunity

Zonk posted more than 6 years ago | from the covering-their-butts-while-they-still-can dept.

Privacy 177

kidcharles writes "Newsweek reports that a secretive lobbying campaign has been launched by telecommunications companies who are seeking retroactive immunity from private lawsuits over their cooperation with the NSA in the so-called 'terrorist surveillance program.' Director of National Intelligence Mike McConnell has claimed that lawsuits could 'bankrupt these companies.' The Electronic Frontier Foundation has filed a lawsuit against AT&T over their cooperation in the domestic spying program. EFF legal director Cindy Cohen said of the lobbying campaign, 'They are trying to completely immunize this [the surveillance program] from any kind of judicial review. I find it a little shocking that Congress would participate in the covering up of what has been going on.'"

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Why shocking? (5, Insightful)

spooje (582773) | more than 6 years ago | (#20712557)

Why is anyone surprised Congress would be hushing this up? If the companies get sued for huge sums, then where will they get money to bribe congressmen?

Re:Why shocking? (4, Interesting)

Dunbal (464142) | more than 6 years ago | (#20712651)

After all, Congress is more than willing to grant the Bush administration retroactive protection from prosecution as a war criminal [liveleak.com]... why not help his corporate buddies while they're at it?

Re:Why shocking? (3, Insightful)

lawpoop (604919) | more than 6 years ago | (#20712781)

OK, the US Congress can protect him from American prosecution for war crimes, but would they alone be able to protect him from international war crimes, say, at the Hague? Now I know the US isn't part of the international criminal court or whatever it's called, but I don't recall Nazi Germany agreeing to any war crimes convention.

Re:Why shocking? (1)

Planesdragon (210349) | more than 6 years ago | (#20712797)

I don't recall Nazi Germany agreeing to any war crimes convention.
Germany had been conquered and had unconditionally surrendered. The war crimes trials were done in lieu of the tradition, said tradition being summary executions.

Re:Why shocking? (1)

lawpoop (604919) | more than 6 years ago | (#20712857)

Good point. This war in Iran had better go according to plan, for Bushes' sake :(

Re:Why shocking? (1)

s4m7 (519684) | more than 6 years ago | (#20713097)

This war in Iran had better go according to plan
Why wouldn't it? After all, the Iraq war is going so swimmingly.

Re:Why shocking? (2, Insightful)

lawpoop (604919) | more than 6 years ago | (#20713239)

Well, from Bush/Cheney's perspective, it's a giant payoff to their buddies Halliburton, KBR, and Blackwater, along with other military contractors. The international oil companies are going to get their share of Iraqi oil once the region stabilizes. Bush/Cheney are getting their permanent bases built in Iraq, along with the world's largest embassy, larger than the Vatican City.

So, yeah, going according to plan.

Re:Why shocking? (1)

Arancaytar (966377) | more than 6 years ago | (#20713025)

Germany had been conquered


Quick - someone tell the Chinese that Bush called them all a bunch of slit-eyed Japs!

Damocles (2)

Scrameustache (459504) | more than 6 years ago | (#20713213)

OK, the US Congress can protect him from American prosecution for war crimes, but would they alone be able to protect him from international war crimes, say, at the Hague?
No, not alone. They'd need some kind of gigantic standing army or something, at their disposal, if they wanted to do that.
Possibly even some kind of deterrent to keep foreign powers at bay. Something big and scary... perhaps an arsenal of scary things might be enough to make sure no one even seriously talks of making a move.

Re:Damocles (2)

sumdumass (711423) | more than 6 years ago | (#20713823)

I don't even think it would go that far. The idea of diplomacy means you treat foreign nationals with the same respect that you expect your's to be treated with.

No country would seriously enforce this international court indictment because they would fear what would happen to their diplomats. Diplomats are given immunity from prosecution under foreign laws. Currently the worst that would happen is they would be deported to their native country and then that native country would pursue charges on whatever is a closest match to the crime in the country he was deported from.

Without a large standing army, an arsenal that would cripple most modern countries, and the will to use it, more underlying international laws would protect any actions from happening unless the president actually allows it to happen. The heads of these countries would have to consider their own safety if they ever broke with this rule. The leader of china hasn't been captured in foreign countries and imprisoned for much of the same reasons. You have other countries and leaders too.

It would take a military defeat of the nation to knock the controlling government out of power in order to take the diplomatic immunity away from them. Even when they are out of power.

Re:Why shocking? (0)

Anonymous Coward | more than 6 years ago | (#20712743)

Seriously, why the surprise. It's all part of the war on terror: If the freedom loving countries of the western world become more like the arbitrary fundamentalist regimes of the middle east, perhaps the terr'ists will look for other targets?

Re:Why shocking? (0)

Anonymous Coward | more than 6 years ago | (#20712753)

Someone has to pay, however I don't feel that it should be the telecom companies. They were most likely strong-armed into compliance by the asstunneling clowns running the NSA. Our invisible Vice President, Cheney should pay!

Re:Why shocking? (2, Insightful)

soundonsound (829141) | more than 6 years ago | (#20712927)

The telecoms SHOULD have to pay. Strong armed or not, they knew the possible consequences of their actions and chose the easier route. Why should they be immunized from the inevitable results of their cowardice?

Qwest not a coward (1)

SpaceLifeForm (228190) | more than 6 years ago | (#20713225)

Link [nytimes.com]

Of course, it's all part of the conspiracy, what with a large convicted monopoly based there.

Why has the bush administration kept pressing so hard for the retroactive immunity for the telcos, but has not expended the effort to get Qwest involved?

Maybe it's because they don't want the NSA to actually figure out that the terrorists are based in Redmond.

Note for astromods: Before you mod this down, ask yourself if you really are thinking outside the box, or if you are just part of the problem.

Re:Why shocking? (2, Insightful)

Kingrames (858416) | more than 6 years ago | (#20712935)

Big business: "Hey, we need billions of dollars of help right now, so that we can pay you maybe $1,000,000 in the future."

Congress: "OH BOY OH BOY OH BOY"

Re:Why shocking? (0)

Anonymous Coward | more than 6 years ago | (#20713439)

Seig Hiel, mutherfuckers Georgie owns your asses.

Re:Why shocking? (1)

Seumas (6865) | more than 6 years ago | (#20713945)

It's not their fault that they mindlessly obeyed government requests to violate civil liberties in persuit of the war on terr'ah!

Also, please give me retroactive immunity from anything the telcos might have found me doing during the period they wish to have retroactive immunity for.

Wait, it'll be part of your next bill (0)

Anonymous Coward | more than 6 years ago | (#20712559)

A small clause that says, if you pay your bill, you give up the right to sue for civil rights claims against them.

Much like the clauses they stuffed in previous bills that said you give up the right to sue as part of class action cases against them, and you would elect to using arbitration.

Corperate responsibility (4, Informative)

corsec67 (627446) | more than 6 years ago | (#20712573)

What would happen to any other group of people that committed large-scale spying on the people of the US?

Why should corperations be free from punishment for committing crimes, especially if it is in association with a branch of the government?

Not quite (4, Insightful)

DogDude (805747) | more than 6 years ago | (#20712627)

You're not really understanding the situation. AT&T didn't say, "Hey, let's spy on our customers, and ask Bush if we can do it." That's not how his happened.

What actually happened was King George II told AT&T and other companies: Let us into your networks. We say so. We have the guns. If you don't comply, then you'll be branded as terrorists.

And yes, you can say that AT&T and such should not have complied, but nobody outside of the top brass at AT&T know what they were threatened with. Maybe they were given payment, maybe they weren't. Of course, the government won't release any of that information, so nobody will ever know.

Re:Not quite (2, Insightful)

Anonymous Coward | more than 6 years ago | (#20712763)

A wanton breach of ethics is now acceptable as long as it's mandated by the government? Someone tell that to the 70-year old guy who was pulled from his modest middle class retirement and shipped to Germany to stand trial.

Re:Not quite (1)

sumdumass (711423) | more than 6 years ago | (#20713845)

The government imposes the ethics. You cannot have them within the law without a government backing it.

Re:Not quite (5, Insightful)

WindowlessView (703773) | more than 6 years ago | (#20712811)

And yes, you can say that AT&T and such should not have complied, but nobody outside of the top brass at AT&T know what they were threatened with.

Isn't this the kind of thing that once upon a time the Free Press leaked, Congress investigated, and the Justice Department prosecuted? Maybe it time people stopped mumbling the mindless incantation that "everything changed after 9/11" and using it as an excuse to abdicate their responsibilities and justify not upholding the law.

Re:Not quite (1)

sjames (1099) | more than 6 years ago | (#20713527)

And yes, you can say that AT&T and such should not have complied, but nobody outside of the top brass at AT&T know what they were threatened with. Maybe they were given payment, maybe they weren't. Of course, the government won't release any of that information, so nobody will ever know.

And there's the problem. All Americans should know, and a proper trial in criminal and civil court would bring the facts out. Everyone willingly involved should be held collectively and individually responsable in civil and criminal court. Being strongarmed is a mitigating circumstance, but it doesn't just make it go away without even a trial.

Letting everyone off the hook sends a very loud and clear message: "You are our lords and masters. You are above the law".

As for people in the government who were behind this, they betrayed the most fundamental principles of the country. The firing squad would be about right for the instigators.

Re:Not quite (1)

sumdumass (711423) | more than 6 years ago | (#20713855)

Setting up the spying networks in itself wasn't against the law. It was the listening that was.I fail to see how you could prosecute everyone associated with it and have it last in any fair court?

Re:Corperate responsibility (3, Insightful)

Kjella (173770) | more than 6 years ago | (#20713223)

Acting like the devil's advocate, the government is special. If my ISP recieves a legitimate order to hand over information (warrant) or spy on me (wiretap) they'd do it and what would be a crime if they did it for anyone else is accepted as legal because the investigative power of the government trumphs normal privacy law. Thus you can't act on the AT&T case without answering the question "Does the NSA have authorization to launch this program?" because if they do, that legitimate order would be immunity. This is clearly a ploy to avoid raising that question in court. The NSA almost certainly had authorization through some executive order from Bush, which is getting to the real core of the issue.

The real issue is the ability of the executive branch to create programs not founded in law (Congress) nor ruled by law (the courts) under the guise of national security. If Bush is allowed to prevent the courts from reviewing this program then the separation of powers has failed - they're all wielded by the executive branch. "Law" is created by executive order, they operate it and noone reviews it. If they really want the NSA to spy on everyone, put it in law. What's sad is that if they named it something like the Anti-Terrorism Investigation Powers Act it'd probably get passed, too.

Shocking??? Get real (4, Insightful)

WindBourne (631190) | more than 6 years ago | (#20712605)

First, ALL companies participated in this program. To not do so, would have jeopardized their gov contracts. A major reason why the gov spreads the wealth around is because then the companies are beholden to them. Imagine what would have happened to Verizon or QWest(yes, qwest did not par ticpate in a few minor parts) if they had not? Not only would they have been denied future contracts, but they would have lost major gov contracts and probably a number of other contracts dealing with companies who are very dependant on the feds. For QWest alone, they would have lost no less than 20% of their business. Verizon would have lost a great deal more. What is shocking is that this is in the open.

Re:Shocking??? Get real (1)

fangorious (1024903) | more than 6 years ago | (#20712737)

do you have any references for what Qwest did or did not participate in?

Re:Shocking??? Get real (1)

WindBourne (631190) | more than 6 years ago | (#20713733)

All that I can say is that you will notice that they were at the core of the group that landed a VERY large contract with the Feds. If they had not cooperated with the feds, they would not have landed it, and they would have lost all their lucrative contracts.

Re:Shocking??? Get real (0)

Anonymous Coward | more than 6 years ago | (#20713105)

"Get Real"?

What an asshole you are.

It's ALL about whats morally "right".

It's clear that you don't have a clue about morals.

Really? (1)

WindBourne (631190) | more than 6 years ago | (#20713721)

And what is morally right in your book? That they should be immune or that they should not? Because from my book, giving them immunity is incorrect. By saying that they would not give up info AND then doing so, that makes them immoral. The funny part about this, is that I am guessing that you are either a far left winger who has no clue about reading what I wrote, or you are one of my freaks who is a far right winger, and does not have the nads to say who they are (typical right winger; brave until they have to put it on the line).

Re:Really? (1)

sumdumass (711423) | more than 6 years ago | (#20713871)

What laws exactly did they violate to need immunity from? Allowing the government access to regulated networks should be to serious of a crime when the government regulates it in the first place.

Dumo sovereign immunity! (0)

Anonymous Coward | more than 6 years ago | (#20712613)

Change the Federal Tort Claims Act or whatever else needs to be changed so we can sue the government back into accountability.

It is the US government that needs to be sued and payout damages to everyone that has been unconstitutionally spied on.

Ex Post Facto laws unconstituional? (5, Informative)

lawpoop (604919) | more than 6 years ago | (#20712625)

Excuse me, but aren't ex post facto laws specifically forbidden by the constitution?

Article 1, Section 9 [wikisource.org]:

No Bill of Attainder or ex post facto Law shall be passed.
My understanding is that an ex post facto law works both ways: You can't make illegal activities that were legal in the past; nor can you make legal activities that were illegal in the past. In other words, you can't change the legal status of actions in the past. [wikipedia.org]

Re:Ex Post Facto laws unconstituional? (1)

ScrewMaster (602015) | more than 6 years ago | (#20712701)

In other words, you can't change the legal status of actions in the past.

So? They'll just redefine the meaning of the word "past".

Re:Ex Post Facto laws unconstituional? (2, Interesting)

PJ1216 (1063738) | more than 6 years ago | (#20712855)

You can change the legal status from illegal to legal under certain circumstances. Such as situation where someone finds a loophole so that they get punished for doing something that really shouldn't have been illegal, but due to the wording of the law, it technically was. Laws can be retroactively applied to 'free' people. However, in this case, they'd have to make it legal for the companies to do whatever it was that they did. I for one hope they never make it legal and in that case, they therefore can't retroactively apply it.

Re:Ex Post Facto laws unconstituional? (1)

acvh (120205) | more than 6 years ago | (#20713003)

They aren't changing the law, merely making a new law that the old one won't be enforced.

Re:Ex Post Facto laws unconstituional? (3, Insightful)

sepluv (641107) | more than 6 years ago | (#20713209)

Bush already introduced a retrospective amnesty act in the form of the Military Commissions Act which exempted Bush and those working for him from prosecution under the War Crimes Act for acts committed before the commencement of the MCA.

As for bills of attainder (legislation outlawing a person or organisation rather than their actions), try declaring yourself a member of Al-Qaeda in the USA and see how long it takes before you are detained (or carted off to Guantanamo Bay).

Keep up. Your head of state declared two years ago that "[the U.S. Constitution]'s just a goddamned piece of paper!"

Re:Ex Post Facto laws unconstitutional? (2, Interesting)

Toliaro (411158) | more than 6 years ago | (#20713485)

Note carefully: this is not about declaring previous behavior to be retroactively legal, it is about passing a new law that would wipe out current lawsuits. This is different, and it has been done many times in the past. (After 9/11 a new law was passed to prevent thousands of expected lawsuits from being filed by victims' families.) This approach can serve a useful social purpose if used approriately, and the question is whether the tactic is appropriate to protect heavily-regulated companies who may have "over-cooperated" with government.

BTW it's good that you know the constitution because the 'ex post facto' thing is emphatically not dead, which probably led to the end run described in the article.

Re:Ex Post Facto laws unconstituional? (3, Informative)

sepluv (641107) | more than 6 years ago | (#20713513)

There is also the little problem of the Fifth Amendment: "no person shall...be deprived of...property without due process of law". The government are depriving the EFF of their potential property (court damages) retroactively after their case has been filed by declaring the defendant immune from suit. I don't call that "due process of law".

Here is the bill [fas.org] that the Bush administration and telcos are demanding be passed. It retroactively bans any court from hearing any criminal or civil case (including those pending) against "any person" if the Attorney General (or anyone to whom he delegates such power) declares that the defendant's action "is, was, would be, or would have been intended to protect the United States from a terrorist attack".

This effectively gives the Executive the power to halt any court case.

Re:Ex Post Facto laws unconstituional? (1)

diqrtvpe (929604) | more than 6 years ago | (#20714009)

Well, IANAL, but I read through the pertinent section of the bill to which you linked, and it seemed to me like it didn't actually give the Executive power to halt any court case, just any court case involving the "alleged provision to an element of the intelligence community of any information . . . or any other assistance." To me that reads that if you break any privacy laws to give information to the government, you're pretty much scot free. Which, while not the blank check you suggested, is certainly bad enough. On the other hand, I didn't read the entire text of the bill, so there may be further sections to which you refer, in which case feel free to correct me.

How about a trade... (1)

Khaed (544779) | more than 6 years ago | (#20712643)

Since it would save them from going bankrupt and thus is worth money to have the immunity... how about a trade: Retroactive immunity that only applies up to this point, in exchange for net neutrality? They give up the profit of double-dipping in exchange for not going bankrupt.

No trades. (1)

Anonymous Coward | more than 6 years ago | (#20712681)

There are no trades to be made here. They should be held fully responsible for their past transgressions, and net neutrality should be made mandatory. It's as simple as that.

Re:How about a trade... (1)

sepluv (641107) | more than 6 years ago | (#20713019)

I have a better deal: the charges against AT&T are dropped in exchange for them testifying against the NSA and GWB. Oh wait...GWB appoints the prosecutors and judiciary and the NSA know all their dirty secrets..never mind...

Re:How about a trade... (1)

sepluv (641107) | more than 6 years ago | (#20713049)

Before someone points this out, I am well aware that they are only being sued ATM but my point is they probably would have been charged with something by now if the prosecutors didn't have their hands tied by the perps.

God forbid... (4, Insightful)

PJ1216 (1063738) | more than 6 years ago | (#20712657)

Director of National Intelligence Mike McConnell has claimed that lawsuits could 'bankrupt these companies.'
God forbid a company goes bankrupt for breaking the law. If a lawsuit does bankrupt the company, its the company's own fault for not having its customer's best interests in mind. Thats the law of the land... you upset your customers, you run the risk of losing them, or worse (ie: having them sue you). They made a bad business move and they should pay the consequences. They shouldn't be allowed to not suffer any consequences just because it might hurt them. That's ridiculous. Why does the government go so far out of its way to try and protect big businesses? even when its protecting these businesses from the citizens that had their rights abused by these companies. 'A goverment for the people' my ass.

What is the big problem? (0)

Anonymous Coward | more than 6 years ago | (#20713043)

Why should you worry about privacy if you have nothing to hide?
The kind of people I see worrying about privacy obviously worry because they're doing something wrong. Besides, privacy doesn't exist today. A loss of the illusion of privacy is worth it when you see that we are fighting increased terrorism.

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Re:What is the big problem? (1)

satoshi1 (794000) | more than 6 years ago | (#20713135)

Whether or not we have something to hide is not the problem. The problem is that privacy is a right. As people, we are given the right to privacy. What gives these companies the right to spy on us? "Increased terrorism"? What are you on?

Re:What is the big problem? (0)

Anonymous Coward | more than 6 years ago | (#20713269)

I don't think privacy is right. The Constitution is very old and (in my opinion) it, along with many of its early amendments (the Bill of Rights), are obsolete. The United States is very different now. Rights must be sacrificed to maintain society. We need gun control; we can't afford the same level of privacy. Today's technology allows a nation's security to be compromised much more quickly than in the nineteenth century. We no longer can have the privacy we had then. Because of advances in technology, terrorism is much more deadly. The companies are spying in the interest of society. think before you speak again.

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Re:God forbid... (1)

WindowlessView (703773) | more than 6 years ago | (#20713599)

God forbid a company goes bankrupt for breaking the law.

I think I speak for a lot of people in that I would willing forgo the $12 I would get as a settlement from these companies for helping to spy on me so long as the real culprits are brought to justice. I don't particularly want to bankrupt these companies but if these law suits are the only viable vehicles to getting at the real criminals then so be it. Let the rats start fighting with each other as the law starts closing in on them and let the truth come out.

Hah! (3, Insightful)

davmoo (63521) | more than 6 years ago | (#20712661)

I find it a little shocking that Congress would participate in the covering up of what has been going on

Then either you don't live in the US, or you are under the age of 12. Congress is as crooked as any major corporation, and anytime they want to do something like this they just duplicate The Bush Maneuver..."its for National Security".

Darn... (2, Interesting)

Sj0 (472011) | more than 6 years ago | (#20712667)

You know, I really really REALLY hate to say this...

But these guys were just following cues from the NSA. They should be given immunity, and the people in charge who allowed the NSA to solicit these companies into doing illegal wiretapping should be prosecuted to the full extent of the law -- and if it's not very illegal, the law should be changed and they should be prosecuted above and beyond the full extent of the current law.

Re:Darn... (2, Insightful)

PJ1216 (1063738) | more than 6 years ago | (#20712819)

Just taking voluntary orders from a government body doesn't make you immune from your actions. The company was never forced to do anything. Though, i suppose its possible the NSA is trying to put a lid on this because they may have used shady tactics to get the companies to comply. If thats the case, the lawsuit should still go forward and we should wait and see what the companies have to say for themselves. If they weren't given a choice, then go ahead with the lawsuit and have it come out. They won't be charged, and then the NSA can be punished.

And it is very illegal to prosecute someone above and beyond the full extent of the current law. New laws can't be retroactively applied to punish, only to free or acquit. We're talking about trying to get revenge at those who attacked our rights. It'd make no sense if we did the same thing they did.

Re:Darn... (1)

notgm (1069012) | more than 6 years ago | (#20713173)

i have to disagree. when an officer of the law comes knocking with a an official-looking document, legal or not, how can any individual (and you know that corporations are viewed in the eyes of the law as individuals, right?) decide whether or not to go along? there are plenty of legal wiretapping initiatives in place, and it's very easy to see the NSA, or some other branch decide to use these taps a)without a telco's knowledge, b)without a telco's explicit 'permission', and/or through misdirection/lying/whatever. I don't think that the telco's should be immune, but i also think that they should have the ability to turn around and sue the NSA for exposing them to the legal issues in the first place. think about it like this: a man comes to your door with a badge and a warrant, and says he needs to search your house. while in your house, he shoots your dog. it turns out, he's off-duty, actually an officer, and wrote the warrant himself - who is at fault for your dead dog? you? for not examining the warrant? for letting him in? for acting in good faith? for not calling to confirm? no. we need to believe that the authorities are acting lawfully to some extent. if the warrant is written in crayon, and his badge is upside-down, ok, you have reason to doubt...but we should all know that the NSA are pretty good at looking official. if you act in good faith in letting an officer in, and he commits a crime, he's at fault. if the companies acted in good faith, point the lawyers at the source.

Re:Darn... (1)

WindowlessView (703773) | more than 6 years ago | (#20713519)

when an officer of the law comes knocking with a an official-looking document, legal or not, how can any individual (and you know that corporations are viewed in the eyes of the law as individuals, right?) decide whether or not to go along?

Geez, I dunno. Consult a lawyer, perhaps? The telcos are rumored to employ a few.

Re:Darn... (1)

Sj0 (472011) | more than 6 years ago | (#20713587)

If it's a brand new, secret, undocumented program, how is a lawyer going to help?

Re:Darn... (1)

WindowlessView (703773) | more than 6 years ago | (#20713669)

By pointing out "new" "secret" and "undocumented" doesn't make it lawful, especially when not passed by any lawful body and it explicitly breaks 30 years of FISA rulings.

Re:Darn... (1)

sumdumass (711423) | more than 6 years ago | (#20713957)

What if the president's claims of having the authority to do so were correct or at least perceived correct at the time? The against FISA laws didn't come out until after the stuff was installed. And yes, congress ended up passing a law that allows him to do exactly what was supposed to be against the law when this happened.

But more importantly, the telcos could have thought the president was complying with the FISA laws because it allows unrestricted monitoring of non citizens. So were exactly is the intent to break a law? And what laws did the telcos break?

Re:Darn... (1)

mikelieman (35628) | more than 6 years ago | (#20713557)

Nazis were hanged at Nuremberg to prove the point that "Just Following Orders" was not a sufficient excuse.

Re:Darn... (1)

sumdumass (711423) | more than 6 years ago | (#20713943)

The hung Nazis committed genocide and mass murder. Don't you see a little bit of a difference between that and saying here is the corner you can set your equipment up in?

If not, then I think you don't need to be talking about this.

Re:Darn... (1)

Sj0 (472011) | more than 6 years ago | (#20714043)

Individual soldiers weren't massacred en-masse at Nuremberg, only the people in charge who were accountable. I'd say in this case, the government officials who ordered the illegal program and ordered the telephone companies were the people to blame.

Re:Darn... (1)

PJ1216 (1063738) | more than 6 years ago | (#20713651)

When it comes to sensitive data and other's rights and privacy, the companies are expected to play the doubting thomas and hold out until they actually know for sure that they have to give in. Google didn't give in when the DoJ wanted information. They were officers of the law. They had official-looking documents. If they were tricked, they should still be sued because they didn't hold up their part of the bargain and follow rules. However, they could just sue in return those that tricked them. Your analogy is completely flawed and I'll give you a new one. A cop comes to your house, says he wants to search it. You stop him and say, "not without a warrant."

Until the telcos show that they were tricked, they should have NEVER gotten past that "not without a warrant" step.

Re:Darn... (1, Interesting)

Anonymous Coward | more than 6 years ago | (#20712835)

If someone tells you to break the law and you do it, you are still breaking the law and you're responsible for it. Without that kind of responsibility you'll end up with a fascist state where people commit atrocities and excuse themselves with "I was just doing what I was told to do. I had no choice." Millions of people died to end the Nazi regime. The people of the German Democratic Republic risked their livelihoods and lives to end the oppressive socialist regime and its pervasive surveillance organization. Don't fall back into the "it wasn't me" mindset that made these regimes possible.

Re:Darn... (1)

Sj0 (472011) | more than 6 years ago | (#20713281)

This "someone" is the government. As far as I'm concerned, if the government tells you to do something illegal, and you do it, it's entrapment.

Re:Darn... (1)

tshetter (854143) | more than 6 years ago | (#20712881)

But these guys were just following cues from the NSA. So they were just Following Orders? That didnt fly before and it doesnt fly now. Every person is responsible for their own actions. Being told to do something by someone supposedly in power does not make it right, or justifiable. Never has, Never will.

Re:Darn... (2, Insightful)

Sj0 (472011) | more than 6 years ago | (#20713299)

If the government tells you to do something illegal, and you do it, then why is it suddenly your responsibility and not theirs? I consider it entrapment.

Seriously, if you've got to hire lawyers just to make sure the government is asking you to do things that are legal, maybe it's time to start harshly punishing government officials for making requests that are illegal?

Re:Darn... (1, Interesting)

Anonymous Coward | more than 6 years ago | (#20712925)

Not really, the NSA needs warrants to spy domestically just like everyone else. The telcos are just as guilty as the govt in this case.

This is probably also a violation of every Terms Of Service agreement for all those carriers as well. Something along the lines of "We will not divulge any of your personal information unless required to execute a warrant."

Re:Darn... (1)

soundonsound (829141) | more than 6 years ago | (#20713007)

> But these guys were just following cues from the NSA. If anything, that why I think they shouldn't be given immunity. Let them be an example for future CEO's and boards; You WILL get sued into oblivion if you are an accomplice in violating the rights of your customers across the board. If they go bankrupt, great. They'll eventually come out of bankruptcy. The telecoms get too much leeway as is. They've been allowed to nearly reform into Ma Bell anyway in the name of "competition" and "deregulation". You think that would be a clue to what happens when you just look the other way and let them run rampant: You get screwed.

Re:Darn... (2, Insightful)

cwhicks (62623) | more than 6 years ago | (#20713057)

I am sure that they are quite familiar of the constitution and had a very clear understanding of the laws dealing with wiretapping as they deal with warrants for information everyday.

They knew exactly what they were doing and that it was illegal.

Re:Darn... (4, Informative)

DavidTC (10147) | more than 6 years ago | (#20713375)

It's not even the constitution they need to understand. It's the laws themselves.

What's interesting is that not only was the entire program illegal, but they had the AG sign off on it claiming it was legal, every 45 days, so they could claim they were following the law. The law actually only allows the AG to sign of on wiretapping if the AG asserts that no Americans will be tapped, like they're bugging the Chinese embassy or something. But the AG illegal signed off on the tapping anyway, giving himself quite a lot of civil liability. This was, of course, still illegal, it's not 'The AG signs off on any wiretapping, then it's legal', it's 'The AG signs off on wiretapping and make a specific claim, under threat of perjury, that X is true, then it's legal.', which he did not.

But the telecoms could at least pretend they were following the law. If anyone asked, the had the AG on record that the law was being followed, and anyone asking would just assume that by that they meant the specific exception under the law, not the words 'Do it.' and a signature. They got that every 45 days.

But then Comey, acting AG, refused to sign off on it. There's an interesting theory that Rumsfeld couldn't, for some reason, couldn't stop authorizing the program, (Perhaps blackmail?) so deliberately rendered himself unable to be AG during a time when the papers had to be signed. (Otherwise, it's hard to figure out why he didn't just re-authorize it in advance. It had to be every 45 days, but nothing stopped him from authorizing it at 40 or 35 days for another 45 days if he knew he'd be having surgery. He could have signed the papers right before he temporarily stepped aside as AG. It wasn't emergency surgery, and he knew Comey was opposed to it.)

Whatever the reason, the program was operated for at least 24 hours, maybe up to a week, starting on March 11, 2004, without even a pretend legal justification. The White House said to do it, the AG said no. This was flatly, completely, inarguably illegally. There is absolutely no legal question about it. (1)

That time period is for what the telecoms need immunity. All the other time, they can argue 'Oh, we had the AG's assurance this was legal.', even though they didn't actually, under statue, have it. (He must make specific assurances to them that were not made, and both they and him knew it. They have a damn form letter for it.)

They thought they could weasel out, but, then, at one point in March 2004, they asked for the pretend authorization and didn't get it, and let the government keep operating, thus totally blowing any claims they might have that they were operating legally.

1) And it's fucking insane that Congress hasn't already started impeachments over that specific incidence. Forget arguing the legality of the program when it was signed off on. The President can weasel out of the rest of the time by pointing to the AG's signature, and we can spend years arguing over who did what.

But during that specific time the White House, by itself, ordered the wiretapping, over the objections of the AG. Even if the wiretapping was on foreign nationals and even if that means the president has the inherent power to do it (Neither of which have been demonstrated.), he still has to follow the process laid out in law...if he disapproved of the AG he should have fired him.

Re:Darn... (2)

Jah-Wren Ryel (80510) | more than 6 years ago | (#20713901)

But then Comey, acting AG, refused to sign off on it. There's an interesting theory that Rumsfeld couldn't, for some reason, couldn't stop authorizing the program, (Perhaps blackmail?) so deliberately rendered himself unable to be AG during a time when the papers had to be signed.
Just a minor fix: Rumsfeld => Ashcroft.

Re:Darn... (0, Flamebait)

huckamania (533052) | more than 6 years ago | (#20714127)

Following your interpretation, no phone calls could ever be legally tapped by the NSA, anywhere in the world. After all, it could be an American in the Chinese embassy making the call. Or it could be an American receiving the call. This way lies madness.

Phones do not have citizenship, people do. The NSA should be allowed to tap any damn call any damn time, because even in this country there are non-Americans making damn phone calls to other non-Americans.

What should NOT happen, is allowing the contents of the phone calls to be used in the prosecution of Americans. This is in fact what happens and it is a well recognized remedy for when abuses take place. Evidence is declared non-admissable.

There is no right to privacy. Just ask Jennifer Lopez or Britney Spears.

Re:Darn... (4, Insightful)

Wordplay (54438) | more than 6 years ago | (#20713099)

Everyone else is already calling BS, and I agree. The companies colluded voluntarily, whether it was to preserve contracts or not; greed's not a reason to break the law.

I'll also point out that the only way you'll ever be able to ensure that the government won't be able to do this again, at least so easily, is to crucify the companies who helped them do it and didn't call foul loudly and publicly. Set that sort of precedent, and they won't have willing accomplices again. Moreover, it'll be for -business- reasons, the only universal ones in a capitalist society.

Re:Darn... (1)

Sj0 (472011) | more than 6 years ago | (#20713359)

If the president orders something illegal, it's still the president's order.

If the government official says says "This is secret. Divulge this to the public, and you'll be prosecuted. The president has authorised wiretapping on the following people. Don't comply and you'll be prosecuted."

That seems like entrapment to me.

Re:Darn... (0)

Anonymous Coward | more than 6 years ago | (#20713447)

No way. We are a country of laws, not of people. If you break the law, you get in trouble. If you break the law because the president tells you to, then you had better see a signed pardon before committing the crime. That's just how it works, and that's how it's supposed to work. If the law must be broken, then the president needs to be willing to take the blame for it by the light of day. If he's not willing, then it isn't important enough and you had better obey the law rather than the edicts of the dictator, er, um, I mean president.

Obviously, if the next president has any scruples, he/she will begin by prosecuting to the fullest extent of the law everybody who committed illegal acts during the previous administration. If Bush pardons them all before he goes, then at least we have a full accounting of what was done (and they should then be fired), if not, then I guess it would have been wiser to obey the law, not the glorious leader.

Re:Darn... (1)

Sj0 (472011) | more than 6 years ago | (#20713499)

We're a country of laws. When the government starts demanding companies or people start breaking those laws, the same government that writes the laws, I figure it's the government who should face the greatest consequences.

If the plant manager sends an order through the chain of command for me to do something that'll get me fired. It is he who should be fired, for abusing his power, not I for simply following directions from a source that SHOULD have been trustworthy and ethical.

Re:Darn... (1)

ntk (974) | more than 6 years ago | (#20713729)

The thing is, even when you're told to by the NSA -- *especially* when you're told to by the NSA -- you need to check the law. These are global companies, with good legal counsel, and an excellent understanding of the privacy laws they are liable under. Qwest refused to comply with the program unless the government came back with the right paperwork, and so should AT&T.

"Come back with a warrant" isn't just a way of defending yourself, it's a way of ensuring that our system works for everyone.

Re:Darn... (1)

Skapare (16644) | more than 6 years ago | (#20713903)

They should be given immunity, and the people in charge who allowed the NSA to solicit these companies into doing illegal wiretapping should be prosecuted to the full extent of the law ...

Only if these companies testify openly in court about the illegal wiretapping they were encouraged or pressured to do, with names of who talked to who.

Not entirely a Bad Thing (2)

Prysorra (1040518) | more than 6 years ago | (#20712687)

It would be greatly satisfying to roast them over Congressional coals, but with immunity they're more likely to cooperate with agencies that have reason to investigate abuses of power.

Not a ray of sunshine, put at least it's the crack of dawn...

Re:Not entirely a Bad Thing (1)

oddaddresstrap (702574) | more than 6 years ago | (#20712893)

The glowing coals of Congress are, these day, dead embers, with wisps of ash rising occasionally when they are stepped on.

how can there be immunity? (1)

TheGratefulNet (143330) | more than 6 years ago | (#20712695)

I don't understand. the ability to sue is fundamental. you may not WIN and even if you win you may not be able to actually COLLECT, but to deprive the ability to even raise the issue in court?

trim our constitutional rights, much, congress? oh right - its a quaint old doc, isn't it.

a law suit would be meant to show that the public does NOT approve of this. we can't get this on a voting initiative, we can't get our congress people to REALLY represent us, we really have NO ONE to speak for us! this is very scary.

and now we may have no one (in court) to hear us, even IF we are allowed to speak.

we need the ability to at least question a behavior. that's one purpose of a lawsuit. and if the lawsuit finds that the telecoms should not have rolled over and violated the assumed trust of its customers, then I hope they DO go out of business! let some other newcomer join the ranks and maybe they won't make the same mistake, for fear of getting THEIR hands spanked.

to remove the _chance_ for punishment of entities that do wrong - that, itself, is quite unamerican. (then again, the concept such as 'gag orders' and 'sneak and peek' warrants also seem quite unamerican to me, but they still exist in today's america) ;(

Re:how can there be immunity? (2)

ScrewMaster (602015) | more than 6 years ago | (#20712749)

Besides, "going out of business", in this context, just means that some other large corporation will buy their assets and kick out the current management team. Heck, maybe Google could take out an option to pick up Verizon for ten cents on the dollar. In any event, it doesn't mean that the phone system will stop working all across the country (which is what these assholes are implying.) That's what this is all about: the people presently running the show don't want to find themselves out of a job. Now, that's just too bad ... they've earned jail sentences and are hardly entitled to their positions anymore.

command and control (5, Insightful)

schwaang (667808) | more than 6 years ago | (#20712729)

It's actually in the long-term best interests of all companies to *not* have this immunity.

This just enables a form of government interference in corporations that is even worse than regulatory laws. Regulations get made in the open and are subject to lobbying and court rulings. Whereas the NSA warrantless spying amounts to the commandeering of the corporate assets and procedures and is enforced by secret laws that (apparently) cannot be challenged in court in any reasonable way.

Even with recompensation that returns a profit on investment, this is a bad deal for corporate independence.

Re:command and control (1)

Bocconcini (1057516) | more than 6 years ago | (#20712921)

Who's really interested in long-term success anyway?

Stock holders prefer short time profits.
Company execs get golder parachutes no matter what happens.
Grunts get screwed, but hey, who cares?

revolution. (0)

Anonymous Coward | more than 6 years ago | (#20712803)

revolution.

DO IT! Bankrupt the Bitches! (0)

Anonymous Coward | more than 6 years ago | (#20713015)

YEAH!

DO IT! Bankrupt the Bitches!

Restart the New World Order, not their fucked up version.

All those fuckers should be SHOT for TREASON!

ALL of them.

Greedy bastards getting rich off of our backs, and then wanting immunity for illegal spying?

Come on people develop some spine and go after the true TERRORISTS.

re: Telecom Companies Seek Retroactive Immunity (0)

Anonymous Coward | more than 6 years ago | (#20713029)

I find it a little shocking that Congress would participate in the covering up of what has been going on.

And do you also still believe in Santa Claus?

I have always disliked bullies (2, Insightful)

earthforce_1 (454968) | more than 6 years ago | (#20713081)

And Government is the biggest bully of all.

Imagine playing a game where if the other side is losing they get to rewrite the rules of the game in their favour - retroactively if necessary. They have done it before, and they will do it again. The terrorists have already won. Our own governments have destroyed our freedom on their behalf, and it doesn't matter anymore who wins "the war". John Q. Public loses either way.

How many times.... (2, Interesting)

Anonymous Coward | more than 6 years ago | (#20713267)

Has McConnell et. Al brought up the issue of retroactive immunity before a congressional hearing? Its starting to get old and others seem to be catching this nasty meme.

We can't say anything about what we're doing because it will help the bad guys. Oh and by the way *we* (Can we say conflict of interest??!) reviewed all 50 or so lawsuites pending and believe none of them have any merit... Regardless we desperatly need to grant retroactive immunity to all those telephone companies that have helped us. Doing this is necessary to help ensure that none of our secrets come to light in unecessary court cases and prevent companies from thinking twice before helping us again.

WHAT IF ...

The government has illegally infringed on the privacy of Americans. Invoking "state secrets" and quashing legal challenges to its actions would seem to me to be an effective way of ever having the truth come to light.

On these grounds its imperative we don't grant any government institution the ability to design and explot loopholes allowing it to effectivly circumvent either the constitution or checks and balances regardless of what we may think about them or what they may honestly believe their intentions to be.

Those spouting that carriers had no choice is interesting.. Even the government has to get service from someone? Telcos do have leverage and lobbiests and communicate with each other on a regular basis.

This is the end (1)

smcdow (114828) | more than 6 years ago | (#20713807)

If this bill passes into law (and isn't struck down by the Supreme Court), then for all intents and purposes, the Constitution of the United States is null and void.

There, I said it. Words cannot adequately describe how disgusting I think this is.

Re:This is the end (0)

Anonymous Coward | more than 6 years ago | (#20714089)

Constitution? I don't think it was written in Spanish, buddy. So, our cops can't understand it.
Face it, we, ourselves, let America get killed by Fox Bill "Goebbels" O'Reilly, George "Adolf" Bush, and their Republinazi Southern Baptist gang...
It IS really the end. Or it was a couple of years ago, when we conceded that cops are able to stop you for no reason and use tasers on you as they will.
Now it is too late. Like any dictatorship (Latin American, Middle Eastern, Soviets) when they are not overthrown from power, they will pass laws before they leave to "amnesty" themselves and their buddies, so they don't get catch by the next government.

Call the Democratic Leadership on this (3, Informative)

ntk (974) | more than 6 years ago | (#20713861)

The Democrats are rushing this through because they were shocked by the reaction to their passing the Protect America Act last session -- everyone slammed them for giving new surveillance powers to the White House, and so they're scrabbling to fix matters with a new bill.

But they're making the same mistake again. They think no-one cares about immunity. They think it's just a business-as-usual deal.

Please call Nancy Pelosi and Harry Reid and let them know that you're angry at the idea of giving retroactive immunity to the telcos, and by extension, participating in a cover-up of the warrantless wiretapping project. It's not that they're wedded to this idea, it's that they don't think their base or independents care about telco immunity.

Call Rep. Nancy Pelosi -- 202-225-4965
Call Sen. Harry Reid -- 202-224-3542

If you want more facts and arguments, EFF has them here [stopthespying.org].

A couple more notes, for those who like the grubby details. The telcos are pushing for complete retroactive immunity, or alternatively "substitition", by which the government takes the place of the telcos as the defendant in the case. The government has a lot more power to evade the cases by dint of its own in-built immunity to some kinds of prosecution and thus end the cases. A few other groups are suggesting financial caps of penalties, so that the cases could go forward, but if the courts found the telcos guilty, they wouldn't suffer the "crushing liability" they say the cases would cause. (Note that the only way the telcos would *actually* be fined a large amount of money by our case would be if they were guilty of blanket, system-wide surveillance of all their subscribers [eff.org].)

Thanks.

Ron Paul would abolish the NSA and telco monopoly (1)

SonicSpike (242293) | more than 6 years ago | (#20713941)

Yeah... the government has the telco industry in bed with it. This is because the telco industry lobbies the government to regulate telcos. Big government is bad for the market and big business LIKES big government because big government can regulate and legislate in favor of big government thus stifling the competition.

The only person who has promised to do anything about this is Dr. Ron Paul who is running for President. If you want to stop this nonsense, I suggest you Google Ron Paul.
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