Telecom Immunity Perfectly Constitutional

Posted by Hans Bader

Congress gave the phone companies immunity against the billions of dollars in lawsuits brought against them for cooperating with federal antiterror surveillance programs.  The ACLU and some trial lawyers argue that this is unconstitutional.  But even law professors, like Howard Wasserman, who don’t like the grant of immunity, agree that it is constitutional, as Wasserman explains here.  Indeed, the legal arguments against immunity don’t pass the straight face test, although it is conceivable that a mischievous judge who has previously ruled in favor of telecom lawsuits and is angry at Congress for curbing them will pretend to be convinced by them in order to allow such lawsuits to proceed.

Critics of immunity claim it violates separation of powers because it retroactively changes the law.  But Congress often retroactively changes the law.   It recently passed a law dismissing lawsuits against gunmakers over gun-related crime, and that law was upheld by both the D.C. Court of Appeals and a federal appeals court in New York.  Indeed, critics of telecom immunity are themselves big supporters of retroactive laws when those laws benefit trial lawyers at the expense of private property rights.  The ACLU, for example, has often supported so-called “civil rights” bills that would make private employers liable for previously-lawful methods of selecting employees, and supported making the 1991 Civil Rights Act retroactive to make employers retroactively liable for emotional distress and punitive damages, and attorneys fees, for conduct that was lawful prior to its passage (the Supreme Court concluded by an 8-to-1 vote that Congress did not intend to make the law fully retroactive, but no justice doubted that Congress could have made the 1991 Act retroactive if it so chose).  The landmark 1964 Civil Rights Act retroactively altered the law, immunizing civil-rights sit-in demonstrators from prosecution under longstanding state trespass laws for refusing to leave after being told to do so by business owners, and no one suggests it was unconstitutional for it to do so.

Critics also claim that the grant of immunity is a “taking” of private property, since it deprives plaintiffs and their lawyers of a potential sum of money that might otherwise become their property if they won their lawsuit.  But a general change in the law that leaves civil litigants poorer has never been understood by the courts as a “taking.”  For example, civil-rights bills have altered the law to eliminate trespass lawsuits against civil-rights demonstrators, even though that eliminates a potential sum of money that would otherwise be recovered by the business owner that suffered the sit-in. 

Earlier, 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 overblown.  Telecom lawsuits like Hepting v. AT&T should be dismissed.

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08/21/2008 @ 1:18 pm | Constitutional & Legal, Economic Liberty, Personal Liberty, Privacy | Comments

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    The telecom immunity provision was invoked in today's ruling in Hepting v. AT&T, in which the judges decided to "remand this case to the district court" "in light of the FISA Amendments Act of 2008, Pub. L. No. 10-261."

    As WIRED notes, "Now the Attorney General need only send a letter to Judge Walker, certifying that each telecom did or did not participate. If they did, the government must show Walker a copy of the legal assurances the government gave the companies. Then Walker must dismiss the cases. . .The EFF . . says it will challenge the constitutionality of the amnesty provision." See Ryan Singel, "Appeals Court Punts on AT&T Spying Case Appeal," WIRED, Aug. 21, 2008, available at http://blog.wired.com/27bstroke6/2008/08/appeal....

    For the reasons given in my above analysis, Judge Vaughn Walker should promptly dismiss the cases against the phone companies, and uphold the constitutionality of the "amnesty" provision.
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    Is immunity constitutional? Probably. But is it good public policy? Not a chance. Retroactively extending immunity from liability creates unpredictability and decreases the legitimacy of the court system as a vehicle for resolving civil disputes. "We were just following orders" doesn't work for war criminals and it shouldn't work for companies with giant legal teams that could have performed due diligence and figured out that wiretapping absent a valid certification from the AG is against the law.
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    Like many Americans who make up that growing class of “disillusioned” voters, I watched the latest “town hall”-style TV debate between Barack Obama and John McCain with my expectations held firmly in check. No matter how many direct questions you ask a politician, regardless of their party affiliation, the answers you receive will resemble generalized sound bites. The New York Times described it as “90 minutes of forced cordiality,” and I must agree. While the exchange was “mercifully free” of personal attacks (according to the Boston Globe), the result was that it was free of much of the tension that makes for compelling television. McCain continued to trumpet experience, his “stay the course” stance on Iraq (seriously, he could have been G.H. Bush’s understudy) and his oil drilling policies. Obama continued to criticize Republican policies that he claims have led America into its current recession. If all were based upon the candidates’ performance here, we’d have no idea exactly how either of them would work to avert pending economic catastrophe. A coherent economic proposal is what America needs. Obama’s stance on “predatory lending” – effectively sanctioning payday advance lenders – is not a coherent solution to the real economic problems we face. That’s just a juicy steak to feed the banking and credit union dogs.
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    On Wednesday, October 14, 2008, the third and final U.S. Presidential Debate took place in Hempstead, New York. According to an average of national polls collected by CNN, Senator Barack Obama went into the debate as the majority’s favorite with an eight-point lead. Sen. John McCain of Arizona attempted to shred the young Illinois Senator’s policies, judgment and character. When Sen. Obama responded with a more critical stance regarding the economic policies of the past eight years, McCain was quick to point out that he was “not President Bush” and intends to enact an “across the board spending freeze,” take a hatchet to unnecessary programs and use a scalpel on the remaining once the dust settled. On the other hand, Obama offered a more conservative sound to the American people, stating he would “go through the federal budget page by page, line by line” in order to close programs that aren’t working as they should. Both presidential candidates proclaim to bring a better change to a broken America and a solution to our economy. However, would they leave or take consumers’ ability to access payday loans where and when it’s necessary? The answer is still uncovered. Although we believe to be living in “the land of the free,” interest groups, such as banks and credit unions, have a different opinion on our freedom to choose. Post Courtesy of Personal Money StoreProfessional Blogging TeamFeed Back: 1-866-641-3406Home: http://personalmoneystore.com/NoFaxPaydayLoans.... http://personalmoneystore.com/moneyblog/
 
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