FISA Amendments and Telecom Immunity

By October 31, 2007Briefly Legal, Communications

The Senate Judiciary Committee just opened a hearing on amending the Foreign Intelligence Surveillance Act, legislation dealing with the federal government’s ability to conduct surveillance of terrorist activities overseas. A key question in the debate has been whether to grant telecommunications companies’ retroactive immunity from civil lawsuits for their cooperation with intelligence gathering in the wake of the mass murder of Americans by terrorists on September 11, 2001.

In an online column in today’s Wall Street Journal, “Surveillance Sanity —
Companies that help protect the U.S. against attack deserve immunity from frivolous lawsuits,” three former attorneys general explain why such immunity is necessary. Benjamin Civiletti, Dick Thornburgh and William Webster make important points about corporate citizens as citizens.

America’s front line of defense against terrorist attack is communications intelligence. When Americans put their loved ones on planes, send their children to school, or ride through tunnels and over bridges, they are counting on the “early warning” system of communications intelligence for their safety. Communications technology has become so complex that our country needs the voluntary cooperation of the companies. Without it, our intelligence efforts will be gravely damaged.

Whether the government has acted properly is a different question from whether a private person has acted properly in responding to the government’s call for help. From its earliest days, the common law recognized that when a public official calls on a citizen to help protect the community in an emergency, the person has a duty to help and should be immune from being hauled into court unless it was clear beyond doubt that the public official was acting illegally. Because a private person cannot have all the information necessary to assess the propriety of the government’s actions, he must be able to rely on official assurances about need and legality. Immunity is designed to avoid the burden of protracted litigation, because the prospect of such litigation itself is enough to deter citizens from providing critically needed assistance.

Read the whole thing.

Join the discussion One Comment

  • I’m not sure why “voluntary cooperation” is required — surely the editorialists wouldn’t be fulfulling their duties as lobbyists for the telcos if they were to suggest that the telcos would sabotage a request that was not voluntary? What on earth does “complexity” have to do with it?

    As far as the common law argument: FISA is the “sole means” of gathering such informations, as the writers all well know. The specifics of statutes trump the generalities of the common law.

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