No Liability for Assisting in Fight Against Terrorism

Posted by Hans Bader

Trial lawyers have brought lawsuits seeking billions of dollars in damages against telephone companies for assisting federal antiterrorism surveillance programs. In today’s Washington Post, Senator Jay Rockefeller, who is a critic of the Bush Administration, and usually sympathetic to the trial lawyers, explains why this is nevertheless fundamentally unfair to many telecommunications firms and an obstacle to important intelligence gathering.

He advocates giving the telephone companies a limited form of immunity from suit, if they cooperated based on plausible assurances by the Justice Department that the surveillance was legal. Effectively, that would end a legal double standard that discriminates against the telephone companies.

It’s worth noting that the federal officials who created a surveillance program already enjoy “qualified immunity” against having to pay damages, even if a court later declares the program illegal, unless their belief that it was legal was plainly unreasonable. (They can still be ordered by a court to stop operating the program, but they can’t be ordered to pay damages if the defense of qualified immunity applies). But private companies, unlike government officials, do not enjoy such “qualified immunity” against damages, exposing them to potentially huge liabilities and attorneys fees.

That is odd, since the government should be subject to a tougher standard of liability than private companies, not the other way around. After all, under the venerable “state-action” doctrine, it’s generally the government, not private parties, which is bound by the Constitution. And it’s the government that bears principal responsibility for making sure its surveillance programs comply with the Constitution, not private phone companies that are not privy to all the details about, or needs behind, such programs. Indeed, as Senator Rockefeller notes, since “the operational details of the program remain highly classified, the companies are prevented from defending themselves in court.”

But the phone companies and their employees, who acted in good faith, cannot rely on the defense of qualified immunity, since the Supreme Court refused to extend qualified immunity to private parties sued in constitutional lawsuits in its controversial 5-to-4 decision in Richardson v. McKnight (1997). So they face risks of liability even if they simply were trying to help out their country in fighting terrorism. Even if qualified immunity isn’t available to the phone companies, some other form of good faith immunity should be extended to them by the courts or Congress based on the country’s national security needs and the chilling effect of lawsuits on achieving those needs.

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10/31/2007 @ 12:50 pm | Constitutional & Legal, Tech & Telecom | Comments

17 Responses to “No Liability for Assisting in Fight Against Terrorism”

  1. Posted by: Ivan Osorio - 10/31/2007

    Today’s Wall Street Journal also features an op ed in favor of immunity from liability for companies that assist surveillance, by Benjamin Civiletti, Dick Thornbugh, and William Webster -

    http://www.opinionjournal.com/extra/?id=110010805

  2. Posted by: OpenMarket.org » Immunity for Telecom Companies - 11/05/2007

    [...] Senator Jay Rockefeller (D-W.Va.) explained in the Washington Post why immunity for telecommunications companies makes sense. As Senator Rockefeller noted, since “the operational details of the program remain highly [...]

  3. Posted by: OpenMarket.org » More on Immunity for Telecom Firms - 11/08/2007

    [...] previously explained why the phone companies merit immunity, and how a legal double standard threatens them with liability and potentially billions of dollars [...]

  4. Posted by: Senate Votes for Telecom Surveillance Immunity | OpenMarket.org - 02/12/2008

    [...] program. Those companies are now being sued for billions of dollars. I earlier discussed here why immunity is warranted. Links to arguments in favor of immunity by other commentators can be [...]

  5. Posted by: Warrantless Wiretaps for Overseas Terrorists | OpenMarket.org - 02/14/2008

    [...] earlier discussed the need to give the phone companies immunity from private lawsuits seeking billions of dollars for their [...]

  6. Posted by: Mysterious Opposition to Antiterrorism Protections Explained | OpenMarket.org - 02/15/2008

    [...] antiterrorism surveillance program. The laws under which they are suing contain a double standard that exposes private entities, like the phone companies, to a greater risk of liability than the [...]

  7. Posted by: ACLU Lawsuit Against Government Over Warrantless Wiretapping Dies | OpenMarket.org - 02/19/2008

    [...] earlier discussed the legal anomaly and double standards that allow the phone companies to be sued for permitting government surveillance even when the [...]

  8. Posted by: House Protects Trial Lawyers, Blocks Liability Protection for Phone Companies | OpenMarket.org - 03/21/2008

    [...] the skids for trial lawyers.”  We earlied discussed Congressional legislation to provide immunity from lawsuits for phone companies, and how House leaders are undermining the leaders of allied countries, while catering to [...]

  9. Posted by: Selective Concern for International Law | OpenMarket.org - 03/26/2008

    [...] bonkers.  So, too, does the claim that the phone companies should be subject to punitive damages, even if the government itself doesn’t have to pay a dime.  (Moreover, the text of the Fourth Amendment does not purport to require warrants for every [...]

  10. Posted by: Wiretaps for Me, But Not for Thee | OpenMarket.org - 04/01/2008

    [...] federal appeals court ordered him to pay damages for invasion of privacy.  I earlier discussed why the phone companies deserve statutory protection from the lawsuits against them. addthis_url = [...]

  11. Posted by: Charles Dukes - 06/19/2008

    Oh the trial lawyers- so much the opposite of the corporate ones. You are so correct, the telecoms should not go to open court and defend their actions as any of us would have to do. The noble nature of these middle ranking royalty makes it proper to to be protected by the king.

    What aload. The bastards should be in prison along with the politicians and political hacks they enabled.

  12. Posted by: Congressional Leaders Strike Deal on Telecom Surveillance | OpenMarket.org - 06/20/2008

    [...] In the U.S. , telecom companies have been sued for tens of billions of dollars by trial lawyers and left-wing special-interest groups for cooperating with far more limited federal antiterror surveillance programs.  I have earlier explained why the telecom companies deserve protection from those lawsuits, and how they have been v….  [...]

  13. Posted by: House Passes Bill to Kill Multibillion-Dollar Lawsuits Against Phone Companies | OpenMarket.org - 06/23/2008

    [...] and individual rights when doing so advances politically-correct causes.  I earlier explained why the phone companies deserve protection from those lawsuits, and how they have been vi….  Andrew McCarthy defends the federal government’s antiterror surveillance program here. [...]

  14. Posted by: FISA Bill Much Worse than Immunity | OpenMarket.org - 07/08/2008

    [...] I’m a deontologist, I also oppose telecom immunity (another point where I disagree with Hans). Companies that do something wrong, e.g. wiretapping conversations that they agreed not to, should [...]

  15. Posted by: Senate Passes FISA Bill, Rejects Double Standard | OpenMarket.org - 07/09/2008

    [...] The Senate rightly rejected an amendment that would have denied the phone companies immunity unless they can prove that the antiterror surveillance they cooperated with was itself constitutional.  That would have enshrined an unfair legal double standard under which government officials escape liability for constitutional violation….  [...]

  16. Posted by: Former ACLU Leader: Congress Should Pass FISA Bill | OpenMarket.org - 07/09/2008

    [...] earlier explained why the FISA bill appropriately grants phone companies immunity from being sued in certain circumstances, and how doin….  Trial lawyers, who have brought multibillion dollar lawsuits against the phone companies, [...]

  17. Posted by: Telecom Immunity Perfectly Constitutional | OpenMarket.org - 08/21/2008

    [...] I explained why telecom immunity is good as a matter of public policy, and why arguments against the federal antiterror surveillance program itself are somewhat [...]

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