What “Liability”?

Brian Beutler, Media Consortium

Paul Kiel wrote an important post yesterday spelling out what a lack of immunity might conceivably mean for the telecommunications companies that helped the government spy on Americans. Should damages be awarded, however, they would be awarded based on how many people the government, via the telecoms, surveilled illegally, not the number of suits, Opsahl said. EFF’s complaint excludes “foreign powers,” “agents of foreign powers” and “anyone who knowingly engages in sabotage or international terrorism” from the class.When I asked [Attorney Kurt Opsahl of the Electronic Frontier Foundation] what he thought likely damages against AT&T might be — if the suit was successful on all of its claims, a very big “if” (see below) — he said $13,000 per customer who was a victim of illegal surveillance. Republicans–in an effort to accuse Democrats of pandering to trial lawyers (who have no stake in this fight) and to convince Americans that the government should protect the poor patriotic telecoms–have framed the immunity issue as one of “liability protection”. But that liability would only be significant if the telecoms had illegally violated the privacy of hundreds of thousands, if not millions, of Americans. And even then, there’s no hurry, because a judgment will not be forthcoming for years: [A] final judgment, should one ever come, is years away. Right now, EFF is waiting for a decision from the Ninth Circuit Court of Appeals on whether the government can invoke the state secrets privilege to rebuff lawsuits challenging the program. It’s not clear when such a decision will come (they’ve been waiting for more than six months). Regardless of its outcome, that decision is likely to be appealed all the way up to the Supreme Court, Opsahl said, a process that could take years.If EFF is successful there, the next battle begins: government lawyers will likely argue that the President has the right, because of Constitutional powers, to ignore the Foreign Intelligence Surveillance Act. That will likely set in motion another decision, appeals and counter-appeals all the way up to the Supreme Court. “Maybe, after we’ve been to the Supreme Court twice, we might go back down to the district court and actually begin litigating the case,” Opsahl told me. “The question of damages is a long, long way away.” Not only is there no urgency, but there was another option: the substitution amendment, bitterly opposed by the White House, which would have mandated that the government–and not the telecoms–served as the defendant in any lawsuits stemming from the Warrantless Wiretapping Program. That may be why the telecoms themselves don’t seem particularly interested in securing immunity. Or, perhaps they’re not worried because, according to blogger bmaz (who’s been making a splash recently) they were likely indemnified by the government at the outset of any illegal surveillance. In other words, the government is seeking to kill off a number of lawsuits, or potential lawsuits, against an industry that seems not to care–lawsuits which won’t be adjudicated for years, and which may result, ultimately, in small or non-existent penalties anyhow. Remember, this is not just an example of the White House and the GOP going to bat for their corporate sponsors (though it may well be that). It’s a sub rosa effort to ensure that the details of their domestic spying activities are never revealed to the public.

Brandon Johnson
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