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No Immunity for the Telecoms
The telecoms happily collaborate with the NSA to run roughshod over the constitution with warrantless phone and email taps but of course they cut off covert surveillance immediately when the government forgets to pay the bill. Bastards. Not that I am surprised. Incentives matter; so of course the telecoms need to be prosecuted.
Thanks to Lee Spector for the link.
Posted by Alex Tabarrok on January 10, 2008 at 12:51 PM in Law | Permalink
Comments
That's exactly right. Although "collaborate" might be the wrong terminology, "profitably sell all customer data without respect to actually existing law" seems more accurate.
Also, interesting that the telcos would side with the terrorists. If on the one hand this "collaboration" is crucially required for national security in a time of war, isn't this petty behavior fundamentally treasonous? Just sayin'.
Posted by: Russell L. Carter at Jan 10, 2008 1:07:47 PM
What if I am a telco who think's warrentless wiretaps are unethical but am coerced to comply?
It is still fair for me to demand payment.
Posted by: anon at Jan 10, 2008 1:17:38 PM
Constitutions bind governments. If I am not an agent of the government, is it even possible for me to do something that is unconstitutional? Unless there is a law that explicitly prohibits telecom companies from cooperating with the Federal government when a warrant is lacking (as opposed to the other way around), they should not be sued because the action is ruled to be unconstitutional.
Posted by: Eli at Jan 10, 2008 2:00:29 PM
I agree with Eli. If anyone did wrong it was the government agency. As long as the telcos demonstrate enough evidence they should be absolved of responsibility.
Posted by: anon at Jan 10, 2008 3:13:19 PM
is not any citizen bound to law?
Posted by: Kerub at Jan 10, 2008 3:20:38 PM
Let me see if I get the logic correctly.
If the crooked District Attorney asks me to rob a bank, and agrees to pay me for my efforts if I give him the bank's money, then I can't be held personally responsible.
Note that the link Alex provided demonstrates that "collaboration" was and is not coerced, and indeed, qwest refused outright. So the correct verb in the above analogy is "ask".
Posted by: Russell L. Carter at Jan 10, 2008 3:20:52 PM
This topic leads to a handy insight: Sue the telecoms for violating the constitution, etc. If they lose big $$ then they will refuse to cooperate for fear of commercial losses. The government will be helpless, and that's the end of that. Maybe the class-action lawyers can redeem their reputations here :)
Posted by: David Zetland at Jan 10, 2008 3:28:52 PM
Russell:
If a government agent / agency asks me for some information and I have reasonable confidence that he has the right level of authority and area of relevance to be asking for that data am I culpable for a good-faith effort to satisfy his query?
I would have use a presumption that the agent was acting in good faith and it was in his "constitutional" right to demad that information. Of course, we are talking about the fine points of law here not something that the telcos could judge was patently illegal. (unlike robbing a bank, Russell)
How much is the burden of proof on me in satisfying I am not violating a law, especially in performing an action demanded by a legitimate government agency?
More importantly, why should the fact that payment was recieved influence our judgement? Would the actions have been any less culpable had the telcos performed them pro bono. (that seems to be the insinuation)
Posted by: Raul at Jan 10, 2008 3:34:18 PM
Raul,
"Of course, we are talking about the fine points of law here not something that the telcos could judge was patently illegal."
FISA law is not murky. The telcos know now and knew then exactly what was legal and what was not. It's their core business, remember. And do note that it's very convenient to trot out the "but we were too stupid to know better" defense. I'd be happy for them to deploy that strategy in court. Maybe it works? But surely we should test it out.
"Would the actions have been any less culpable had the telcos performed them pro bono. (that seems to be the insinuation)"
No, of course not. The fact that they got payment (and can refuse to "collaborate" if they're not payed) just increases the absurdity (but not the illegality) of their actions.
Odd to focus on the payment issue. Me, I'm more worried about lawless eavesdropping on US citizens. As Alex says: incentives matter.
Posted by: Russell L. Carter at Jan 10, 2008 3:50:44 PM
Russell, your argument is convincing. But what I wonder is if you think the telcos were aware of the illegality all through then what incentive did they have? Surely the payments they recieved were not large enough to justify the risk of potential litigation?
Posted by: Raul at Jan 10, 2008 3:56:07 PM
Re "Bastards:" Are the phone companies at fault for demanding payment? No. Should they have cut the government off when national security is at stake? No. Is the FBI at fault for not paying its bills? Yes. Did the FBI jeopardize national security by failing to pay its bills? Yes. I think the term, "bastards," applies to both. Bureaucracy will be the death of all of us!
Posted by: L Glenn at Jan 10, 2008 3:59:37 PM
"But what I wonder is if you think the telcos were aware of the illegality all through then what incentive did they have?"
google Joe Nacchio
Now I doubt that this government is/was competent enough to actually coordinate this but there are many many ways to indirectly coerce using the levers of power. Now maybe you can see what is so absurd about the link Alex provided. None of it makes the least sense in the larger context, which is what my first post at the top is all about.
Posted by: Russell L. Carter at Jan 10, 2008 4:04:57 PM
You might want to investigate what has happened to qwest and its CEO since they refused to cooperate, if you want to know what the levers of power can do and what the incentives might have been for the other telcos.
As I recall their CEO is now in jail and major government contracts that qwest anticipated receiving never happened, but that's probably just all coincidence.
Posted by: lxm at Jan 10, 2008 4:27:50 PM
Russel and lxm:
Thanks for these pointers. In the light of all this evidence I think Alex Tabarrok's anger is severely misdirected.
In the interest of presenting a fair picture, the sad mistreatment of Quest and the concomittant abuse of power deserved a mention in the post.
What do you say Alex?
Posted by: Raul at Jan 10, 2008 5:23:32 PM
Raul, I agree with Russell entirely. The telecoms are bastards for not protecting our rights only their own.
Posted by: Alex Tabarrok at Jan 10, 2008 7:09:25 PM
I suppose, then, that I am totally in the right to refuse immigration authorities who come to my business and ask to see my employees' I-9's. After all, abrogating the freedom of residence and labor of tens of millions of people is, all things considered, the most immoral thing the US government does today. It makes weenies tapping phones look like pikers in comparison.
Since I do not have constitutional lawyers on staff, I would be remiss both to my employees and to myself if I didn't do everything I could to evade a request that is liable to have such immoral consequences.
Posted by: MikeP at Jan 10, 2008 7:15:42 PM
"Russell, your argument is convincing. But what I wonder is if you think the telcos were aware of the illegality all through then what incentive did they have? Surely the payments they recieved were not large enough to justify the risk of potential litigation?"
Posted by: Raul
People violate the law quite frequently. Money, for example, is a powerful motivator.
And they, like many other groups, might have overestimated the Bush administration's ability/willingness/competancy to keep things covered up.
Posted by: Barry at Jan 10, 2008 8:03:00 PM
Alex says:
......"The telecoms are bastards for not protecting our rights only their own."......
I disagree. The telcos are corporations. As I see it, they owe it to their shareholders to ONLY protect their own rights. That does not give them a right to violate ours, but neither does it put the onus on them to protect ours. A subtle point.
As I think of it, the prime purpose of a corporation was to maximise its shareholder interest and not a general protection of public rights.
Maybe I am wrong. I would be glad to have a better opinion. Perhaps Alex, again?
Posted by: Raul at Jan 11, 2008 2:24:39 AM
Barry:
I can see money as being the powerful motivator. But how much are these fees in reality. Does anyone have a ballpark estimate? Do you think they were large enough to motivate the imputed intentional wrongdoing. In spite of the usually cautious legal approach US corporations take in the face of lawsuit and class-action exposure? I am skeptical. On the other hand the abusive threat of retaliatory criminal proceedings could have been employed against top execs. That I think as more likely in which would make the government the "bastard".
MikeP:
I agree with you. That's the point I was trying to make. The onus of deciding complicated constitutional issues of privacy protection and its selective abuse should not be passed on to individual businesses. If the government demands an action the business should be allowed the previlage of assuming that the said action is legal and constitutional. (in good faith)
Sure, people can then challenge the legality of the matter; but if proven subsequently illegal the blame should rest squarely on the shoulders of the government which demanded the illegal-action in the first place.
Posted by: Raul at Jan 11, 2008 2:36:58 AM
maybe I'm too late to the discussion, but I though the law suits against the telcos would be about fraud (could rise to the level of criminal), and violation of customer agreements (civil). So I'm not quite sure they'll get prosecuted. But they probably violated their privacy agreements with their customers by turning over information without an appropriate legal warrent and should be sued for it. Part of the government is trying to grant them immunity from being sued by their customers, and a smaller part providing immunity from crusading state level prosecutors who might try to make their bones against the telcos.
Posted by: scott clark at Jan 11, 2008 10:11:41 AM
Here's the immunity deal I'd go for: no fines against the telcos (since consumers would pick up the tab), just criminal liability for the officers who agreed to break the law.
What could be more fair?
Posted by: Anderson at Jan 11, 2008 10:55:35 AM
The idea that the Telcos did anything wrong is absurd. In time of war, it is the duty of any firm to help the US government prevail and to defeat our enemies, foreign and domestic. To state this directly, once the shooting starts, the US government has the right to top any phone it deems necessary, with or without a warrant.
The idea that the Telcos did anything wrong is absurd. In time of war, the government has a right to wiretap and bug as it sees fit and no court or legislature is going to stop it. This was Abraham Lincoln’s policy when he seized control of the telegraph system. FDR strongly favored wiretapping and bugging and explicitly rejected any limits in time of war. I quote
“Even so, executive officials kept using wiretaps. In particular, Franklin Roosevelt sought to carve out a large exception to the statutory ban. In 1940, he wrote his attorney general, Robert Jackson, that while he accepted the court rulings that upheld the 1934 law, he didn't think those prohibitions applied to "grave matters involving the defense of the nation"--an increasingly high priority as world war loomed. On the contrary, Roosevelt ordered Jackson to proceed with the secret use of "listening devices" (taps or bugs) to monitor "persons suspected of subversive activities ... including suspected spies."”
To be blunt, if FDR (and other presidents) can do it in time of war, so can Bush. When the US was attacked on 9-11 the president had both the right and the duty to eavesdrop at will to defend the US from future attacks. Gore would have acted identically as would any future American president.
Suing Telcos for helping to defend this nation in time of war is shameful. The truth is the left has failed in all of its attacks on Bush for his alleged and actual violations of civil liberties because the American people know that war is an grim business and wiretaps are the least of it. . So now, the trial lawyers are going after the soft underbelly of the system for personal profit. Not a pretty sight.
Posted by: Peter Schaeffer at Jan 11, 2008 11:16:36 AM
Peter, you seem to be unaware that there were statutes passed post-FDR forbidding the telcos to do what they could have done earlier. Or that in fact the Bush administration was working outside the law with the telcos before 9/11.
Your notions of executive power are interesting but do not appear to be supported by any actual case law.
If the President needed the cooperation of the telcos outside the limits of the law, then the Patriot Act should have included necessary changes to the law. That's how it's done in a democracy. If you would prefer to live in a dictatorship, there are many fine examples to choose from. I hope you find one which allows relatively free internet access, so that you can report on your experiences there.
Posted by: Anderson at Jan 11, 2008 11:31:50 AM
Let me offer a few more political comments on this issue. The Democrats and parts of the media have tried to make these wiretaps into a significant political issue. Indeed, a few Democrats even proposed to impeach the President over wiretaps and related eavesdropping.
All of these efforts have fallen completely flat on their face because either the American people don’t care, or if they do care, they support the wiretaps. So now we have a backdoor effort to punish the Telcos for doing something that the American people support.
As anyone familiar with my posts knows, I have very little regard for the failed Bush administration. However, I always hoped that the Democrats would go ahead and try to impeach (and put on trial) Bush over the wiretaps, warrantless searches, etc. The resulting effort would have made the impeachment of Clinton over the dress look like a model of political sanity. The Democratic party would have lost its credibility on national security for years and years to come.
To their credit, the leadership of the Democratic party saw this all too clearly. The Daily Kos and MoveOn crowd drooled at the prospect of vengeance for Lewinsky and Bush/Gore 2000. Cooler and wiser folks saw the downside and sought payback at the ballot box.
However, what legitimate politics have failed to accomplish, has been outsourced to the forces of greed. Having lost the public debate over wiretaps, the Democrats now want to use the trial lawyers to do their dirty work for them, for a few billion no less. Of course, a steady stream of campaign contributions can be expected in return. Shakedowns for fun and profit might be a good description.
Posted by: Peter Schaeffer at Jan 11, 2008 11:45:57 AM
Anderson,
Sate laws restricting wiretaps go back to the early part of the 20th century. The FCC act of 1934 also restricted wiretaps and was upheld by the Supreme Court in 1939. However, every President has maintained that he has an inherent Constitutional authority to wiretap as he sees fit with respect to national security and the courts have agreed. Even if the courts did hold otherwise, in time of war, no President would ever be constrained by a judge (in this context) anyway.
Even after the 1934 act, President Roosevelt had no compunctions about using wiretaps. See “Let 'Em Wiretap!” (http://hnn.us/articles/366.html). A quote
“Even so, executive officials kept using wiretaps. In particular, Franklin Roosevelt sought to carve out a large exception to the statutory ban. In 1940, he wrote his attorney general, Robert Jackson, that while he accepted the court rulings that upheld the 1934 law, he didn't think those prohibitions applied to "grave matters involving the defense of the nation"--an increasingly high priority as world war loomed. On the contrary, Roosevelt ordered Jackson to proceed with the secret use of "listening devices" (taps or bugs) to monitor "persons suspected of subversive activities ... including suspected spies.”
Truman changed Roosevelt’s policies… By expanding warrantless wiretaps. See “Feingold Flouts Constitution” (http://findarticles.com/p/articles/mi_qa3827/is_200603/ai_n17182887). A quote
“Truman went further. Testifying before the Church Committee on Oct. 29, 1975, Atty. Gen. Edward Levi quoted a letter that Atty. Gen. Tom Clark sent Truman in 1946. Clark wanted to continue FDR's program. Warrantless eavesdropping, he argued, was needed "in cases vitally affecting the domestic security, or where human life is in jeopardy."”
And
“In his letter to Specter, Roberts noted, 'Truman broadened the scope of the authorization by removing the caveat that such surveillance should be limited 'insofar as possible to aliens.'"”
And
“Federal appeals courts have upheld the authority Roosevelt and Truman used. "[B]ecause of the President's constitutional duty to act for the United States in the field of foreign relations, and his inherent power to protect national security in the context of foreign affairs, we reaffirm ... that the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence," the U.S. Court of Appeals for the 5th Circuit ruled in the 1973 case of U.S. v. Brown.”
However, the case law on the power of the President to order warrantless wiretaps doesn’t end in 1973. A few more quotes
“Even after President Jimmy Carter signed the Foreign Intelligence Surveillance Act of 1978, which required warrants for domestic intelligence wiretaps, Carter's Justice Department went into federal court to defend warrantless wiretapping for national security reasons.
Lo and behold. Carter's Justice Department claimed Carter had a "constitutional prerogative" to conduct this warrantless wiretap. "In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs," the court explained.”
The court agreed and upheld the administration.
However, if Bush really did anything wrong, why hasn’t he been punished? If impeachment is too much, why not censure? Why did the Republicans try to force a vote on censure and the Democrats refuse? Because the American people believe that (in this matter) Bush acted properly. Indeed, he did exactly what Roosevelt, Truman, Carter, Clinton, and Gore and Kerry would have done under the same circumstances.
Posted by: Peter Schaeffer at Jan 11, 2008 12:42:45 PM
