Recognizing Bravery by Corporate Citizens

By November 5, 2007Briefly Legal, Communications

On Wednesday, the Senate Judiciary Committee marks up S.2248, the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007, i.e. the electronic surveillance bill with – one hopes – retroactive immunity for telecom companies that cooperated with investigators in post-9/11 surveillance of foreign terrorist communications.

Senator Specter is talking about indemnifying the companies instead, with potentially capped damages. Senator Chris Dodd (D-CT) says he’ll filibuster any bill that includes immunity. Hard to do from Iowa. (He’s running for President, right?)

The Wall Street Journal editorialized on the topic Saturday, saying the CEOs of AT&T and Verizon deserve to be included in the next batch of Presidential Medals of Freedom:

Changing technology means that the U.S. National Security Agency can no longer monitor terrorist communications merely by pulling microwaves from the air. Our world of packet switching and fiber cable means that the NSA needs access to the telephone company switching networks to track terrorist plans. When President Bush and the Attorney General requested such cooperation in late 2001, the companies responded despite what they must have known was some legal risk if the public’s terrorism fears subsided.

And, sure enough, the companies now find themselves the target of lawsuits for having cooperated in this surveillance. Congress may or may not provide them with legal immunity from these suits, and if they don’t get it the companies could face a decade of legal harassment and expense before they ultimately prevail. One irony is that Joseph Nacchio, the former CEO of Qwest Communications International who was convicted of insider trading, is now being widely praised in the press because he says he was punished by the government for refusing to cooperate with a surveillance program before 9/11. The feds deny any link.

America would be a more dangerous place if businesses refused to help protect America because they feared a lawsuit, or negative publicity. We hear a lot from critics that corporations need to be more public spirited, and this is a case in which they clearly were.

Refusing immunity for these companies would reflect a return to a pre-9/11 policy mindset, where we blissfully go on our ignorant way, regading terrorists as only a distant, theoretical threat. And then our countrymen are murdered.

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