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Thursday, April 3, 2008

The Debate Fueling the Legislative Gridlock over Telecom Immunity

by: Manoj Ramia, Associate Editor, MTTLR

Image "Hinata rewiring the patch panel" by Gerard van Schip. Used under a Creative Commons BY-NC-SA 2.0 license.

Articles on “telecom immunity” have peppered newspapers and magazines for some time now. Proposed legislation, supported by the President, would shield telecom companies from any legal liability arising from aid they provided to the government in monitoring the information that passes through the telecom companies’ routers, hubs, and switches. This Blog, back in November, covered the ins and outs of why the telecom companies are liable and ended with the possibility that legislation might include an immunity provision for telecom companies. 1 Since then, things have managed to both change and stay the same – the Senate passed a surveillance bill that included a telecom immunity provision while the House recently passed a bill barring immunity. 2 This post examines the ongoing legislative debate, the ideas motivating the various sides, and whether the gridlock will end in the foreseeable future.

The Case For Telecom Immunity

Telecom companies cooperated with the government’s request to monitor information flowing through the companies’ networks under the impression that the government’s surveillance program was legal. To punish these companies now for doing something they thought to be legal would be unfair. 3 And denying immunity and subjecting telecom companies to lawsuits would discourage them from cooperating with the government’s requests for surveillance in the future, despite the possibility of an urgent need to do so. 4

Subjecting telecom companies to trial would also expose “state secrets” – the telecom companies would want to point to the documents they received
from the government arguing for the legality of the surveillance programs in order to escape liability. 5However, these documents contain sensitive information gathered by the nation’s intelligence agencies, and the government would seek to prevent them from being made public in the course of a trial,
hampering the telecom companies from defending themselves. Granting retroactive immunity would keep these classified documents out of the public eye while also keeping the telecom companies out of court.

The Case Against Telecom Immunity

The big concern with granting retroactive immunity to telecom companies is not that the telecom companies will get off the hook, but that the government will. If immunity is granted, the telecom companies will never have to show the documents they relied on to allow the government to monitor communications. 6 If these documents are never seen, the nature and extent of the warrantless wiretaps will never be known. 7As a result, it would be impossible to fully analyze the legality of the surveillance programs and hold anyone legally responsible for potentially breaking the law.

The Real Debate?

Looking at both sides of the debate, it becomes apparent that bubbling under the surface of the telecom immunity debate is bickering over accountability for the warrantless surveillance conducted by the government after 9/11. Support for telecom immunity implies protecting the Executive Branch from scrutiny regarding its efforts to protect the country while opposition implies a desire to further examine the actions of the President and, if need be, hold people accountable for their actions. 8 This perspective informs the activity (and inactivity) in the legislative arena so far.

Some Progress on the Legislative Front, But Perhaps Not Much

At the outset of the debate, the President said he would veto any surveillance bill that did not grant immunity to telecom companies.9 After some debate, the Senate passed a bill with a telecom immunity provision last month.10 The House has had a more difficult time reaching an agreement on a bill acceptable to all. After much debate, the House went into an unprecedented secret session – the first since 1983 and only this fifth in Congressional history – and came out of it with a bill that does not contain a telecom immunity provision but does attempt to find a middle ground between the two sides of the debate.11 Since proponents want a telecom immunity provision to prevent classified information from being introduced in court, the House bill allows the judge to review the classified information in secret to determine if the telecom company in the suit is liable.12 The next step is for the House and Senate to iron out their differences and, though the House attempted to find a middle ground between simply a yes or no on telecom immunity, there is still much distance to cover between House and Senate versions of the bill. Given the volatility of the debate so far, it is likely to continue for some time.

1 Joseph Eros, An Overview of Telecommunications’ Companies Involvement in Domestic Espionage: Part II, The MTTLR Blog, Nov. 13, 2007.
2 Editorial, Wiretap Showdown , Wall St. J., Feb. 12, 2008.
3 NYT (Rhetoric) Eric Lichtblau, Rhetoric: High; Anxiety: Low, N.Y. Times, Mar. 1, 2008.
4 Id.
5 Id.
6 Glenn Greenwald, Signs of Life from House Democratic Leaders, Salon.com, Mar. 12, 2008.
7 Id.
8 Id.
9 Pamela Hess, House Democrats Reject Telecom Immunity, The Associated Press, Mar. 11, 2008.
10 Siobahn Gorman, House Democrats Defy White House on Spy Program, Wash. Post., Mar. 11, 2008.
11 Hess, supra note 9.
12 Id