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.
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’.
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.
is not any citizen bound to law?
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
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.
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!
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.
Raul, I agree with Russell entirely. The telecoms are bastards for not protecting our rights only their own.
“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.
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.
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?
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.
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.
Hear, hear. It really is remarkable to me that we’re even having a discussion about retroactive amnesty for past law-breaking on the part of telcos.
“In 1978, the United States was not at war. Now we are. The inherent constitutional powers of the president are commensurately larger. If you don’t like it, amend the constitution.”
All your ridiculous tortured talking points didn’t matter Peter. Looks like immunity is dead for now. Lawless wiretapping now turns out to be a bad business decision, and trial lawyers are going to start incentivizing.
And in 2009, your arguments are probably going to get a good workout before judges when the perps on the government side get thrown out. I hear the rot goes all the way to the top. Good luck!
Peter, like I said, good luck with your theories. You might want to revisit your deduction train now that we have Dodd prevailing. Odd, eh? I am quite certain that you hope that it is an anomaly, else a lot of your ideological fellow travelers look headed toward the varieties of governmentally applied physical restraint.
Sucks when the government decides that you need restraining doesn’t it? Wouldn’t it be cool to get some of that old good time judicial review? I thought so.
Or maybe since you claim that “we’re at war” and therefore anything the executive wants to do is warranted, because judicial review is just too risky and if some stupid judge were to rule that the hard fist of the executive had overstepped that means the terrorists will have won. Ok.
I suspect Hillary is a mean top. Register as a Democrat and vote for Obama while you can.
“People like you are responsible for the mindset that enabled the 9-11 hijackers to enter this country and kill 3000 Americans.”
“Naturally, the common people don’t want war, but after all, it is the leaders of a country who determine the policy, and it is always a simple matter to drag people along whether it is a democracy, or a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. This is easy. All you have to do is to tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in every country.”
Hermann Goering
My local telecom is a monopoly, and it is out-of-control as far as wiretapping, eavesdropping, hacking, controling e-mail programs, phishing, spoof websites, etc.
No company should be immune from law suits and especially companies that control our communications.
To give telecoms immunity will make “big brother” look like the kid next door due to the increased technology which can literally know where we go, what we do on our computers, and all of our communications.
We may not have anything to hide, but this invasion of our privacy put in the hands of unscrupulous people or an unethical company could be used to against us in countless ways.
We need to stop the spying, and allow legitimate law suits against companies that violate our rights and use the intel bill to racketeer and invade the privacy of law abiding citizens.
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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.
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