Nuts and bolts of the Dodd/Feingold amendment on telco immunity

[from the office of Sen. Russ Feingold]

Fact Sheet on Dodd-Feingold Amendment to Strike Retroactive Immunity

Senate Bill 2248 would require the courts to throw out lawsuits alleging that telephone companies broke the law by participating in warrantless surveillance. If the immunity provision became law, even if it could be proven that telephone companies clearly and knowingly broke the law, they would not be held accountable, and Americans’ privacy rights would be nullified.

The Dodd-Feingold amendment would strike this automatic, retroactive immunity provision and leave it to the courts to determine whether the telephone companies acted properly and therefore deserve immunity.

Myths and Reality Regarding Immunity:

Myth: The bill’s provision is necessary to extend immunity to telephone companies that responded in good faith to a government request.

Reality: Existing law already immunizes telephone companies that respond in good faith to a government request, as long as that request meets certain clearly spelled-out statutory requirements. This carefully designed provision protects the companies and Americans’ privacy by encouraging the companies to comply with legitimate requests but not to comply with requests that don’t meet the requirements laid out in the law.

Myth: A vote against immunity is a vote for liability.

Reality: A vote against immunity allows the courts to decide whether liability is or is not appropriate, based on the facts of the case. If the facts exonerate the telephone companies, there will be no liability.

Myth: Telephone companies should not be expected to know whether the government’s request for assistance was lawful.

Reality: Telephone companies have a long history of receiving requests for assistance from the government. In the 1970s, they worked with Congress to devise a law that tells them exactly which government requests they should honor, in terms that are clear and easy to follow. And they have lawyers who are well-paid to compare government requests with the requirements of the law.

Myth: If we don’t pass retroactive immunity, the government will lose companies’ cooperation in the future.

Reality: The immunity provision in current law gives telephone companies an ironclad defense if they received a government certification that meets certain clear requirements. It holds companies liable for complying with non-compliant government requests precisely because we don’t want the companies to cooperate with illegal government programs. Preventing that kind of cooperation, and protecting Americans from illegitimate government snooping, is one of the main reasons FISA was passed.

Myth: The bill's immunity provision is appropriate given the heightened urgency and threat level in the immediate aftermath of 9-11.

Reality: The bill does not focus on the "immediate aftermath" of 9-11; it would immunize illegal conduct even if that conduct occurred five years after 9-11.

Myth: The common law immunizes private parties that give requested assistance to government officials.

Reality: If that were true, there would be no need for Congress to step in. The truth is that the common law sometimes immunizes private parties that give assistance to government officials where that assistance is compelled by law. However, the common law never immunizes private parties for providing assistance to government officials when that assistance is clearly prohibited by law.

Myth: The telephone companies will not be able to defend themselves because the government has invoked the state secrets privilege.

Reality: There is no precedent to suggest that a court would rule against a defendant when there is privileged evidence that could possibly exonerate that defendant. That simply is not how courts handle such cases. But even if that were a risk, the state secrets problem should be addressed directly, in a manner that is fair to both parties.

Myth: These cases could bankrupt the telephone companies.

Reality: If the companies engaged in such widespread illegal conduct that the damages would be enormous, Congress can intervene to limit the damages. That’s a far more appropriate response than simply giving the companies a free pass for any illegal conduct.

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