FISA Update: Civil Immunity? No, We Changed Our Minds

Four Senators recently introduced a bill that would resurrect litigation against U.S. telecom companies that complied with U.S. government orders to assist in electronic surveillance of suspected terrorists overseas. The bill sends a terrible message that legal immunity, once established, can still be taken away by Congress in the pursuit of political goals.  The legislation also reminds private citizens who want to help fights terrorism that they should expect to be sued for their trouble.

Sen. Chris Dodd (D-CT) introduced S. 1725, the Retroactive Immunity Repeal Act, on September 29 joined by Sens. Feingold, Leahy and Merkley. The bill would “remove retroactive immunity protection for electronic communications service providers that participated in the Terrorist Surveillance Program and for other purposes.” (Senators’ news release.) Vitiating legally established immunity is disturbing in any context, but in this case, it’s especially troubling because it would allow the continuation of legal harassment of good corporate citizens.

The Senators are reviving a debate settled in 2008 when Congress passed the FISA Amendments Act, H.R. 6304, to extend the federal authority (Foreign Intelligence Surveillance Act, or FISA) to conduct surveillance of overseas electronic communications. These communications — phone calls, text messages, etc. — may have had a U.S. nexus, i.e., crossing through U.S. network or involving foreigners calling into the United States to speak to a non-citizen.  However, as applied to overseas communications, the Justice Department held that this surveillance did not require a judicial warrant; passage of the FISA Amendments reaffirmed that position.

A key issue in the FISA reauthorization was whether civil immunity should be granted to telecommunications companies that complied with federal orders to assist in the surveillance.  Lawmakers supported granting civil immunity in the wake of the September 11 terrorism attacks, concluding that companies should not be punished for helping to stop terrorism, especially when the companies are following what they understand to be legal orders.

But as Jed Babbin, a former Deputy Undersecretary of Defense, wrote in Human Events in June, 2008, an early effort to enact that immunity was fought by the cash-seeking litigation industry:

A bipartisan bill — giving telecommunications companies retroactive immunity from civil lawsuits arising from  cooperation in the National Security Agency’s program — had passed the Senate by an overwhelming vote last fall.

That bill hit a wall when the trial lawyers asked [House Speaker Nancy] Pelosi to preserve their chance to earn huge contingency fees in lawsuits against the telecoms alleging the sort of class-action tort claims used to blackmail big companies into high-dollar settlements. There are at least forty such suits already in the federal courts.  The cases are brought on behalf of people who don’t know if they’ve been listened to and — because they haven’t been hurt by whatever may or may not have been done — can only speculate about how they might have been damaged.

These lawsuits aren’t merely the latest evolution in class action ambulance chasing. They are a form of “lawfare”: the use of the courts to interfere in America’s conduct in the war the terrorists are waging against us.

The bill did finally pass with civil immunity provisions intact; Senate approval came on a  69-28 vote with now President Obama voting yes. (New York Times, July 10, 2008, “Senate Approves Bill to Broaden Wiretap Power“). In June 2009, U.S. District Judge Vaughn Walker dismissed 46 lawsuits against the telecom companies, which had in accordance with the law supplied documentation that showed they were complying with an official order. (Walker’s ruling.)

It’s dismaying to see the civil immunity issue come up again, even though the Senators’ bill is unlikely to make progress. As we wrote repeatedly in the “FISA Update” series of posts, the issue is much broader than just the specific actions of U.S. telecommunications companies. At stake is good corporate citizenship: whether companies should help defend the nation. Legislation resurrecting the telecom lawsuits tells U.S. businesses that no, it’s not your problem if terrorists use your services or products to plan the murder of Americans. If you help try to stop them, you will be punished by lengthy, expensive litigation as activists, trial lawyers and civil liberties absolutists seek to achieve national security policy objectives — and in the case of the attorneys, cash settlements — through the courts.

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