Why Immunity Matters

But why would lawsuits over past actions have any effect on telecoms following lawful directives from this point forward?

Here's how that senior Justice Department official explained it at a White House briefing last week: "We have to work with them. And, yes, we can compel them to assist us through various court orders or directives. But I know as a prosecutor working criminal cases, trying to get telephone records, there's some companies that work well with you and you get them in a day, and you can -- that will help you to run down the bad guy more quickly. Others will take the full two weeks. And so there's cooperation, and there's cooperation.

"Also, keep in mind that, yes, the providers, if they want to, they can litigate everything we give them. They have the right under the PAA -- the Protect America Act -- to go ahead and challenge these directives, and that's within their right to do so. And at the end of the day, we might prevail -- we will prevail because we have the authority to do it. But during the time that that's being litigated, the surveillance we're asking them to do is not happening. . . .

"So don't underestimate -- because there's no immunity, the providers are understandably concerned. They've got shareholders, they've got fiduciary duties to their shareholders, they've got to protect them. And one thing the general counsels do is then they try to minimize their risk. And they do that by, sometimes, litigating things more just to make sure that they've got a court order to cover them at every step of the way. And that will really slow us down."

But the telecoms can't possibly be worried about prospective immunity for following lawful orders -- that's already part of the agreed-upon legislation.

So are they actually telling the government: Unless you get us off the hook for billions in potential damages based on our past actions, we won't follow the law -- or we'll do so, but only kicking and screaming. That doesn't sound like a legitimate reason to help them out. In fact, it sounds like extortion.

Or are they simply saying that without retroactive immunity, they'll feel a greater need to be absolutely sure that what they're doing is legal? If that's the case, that sounds like a good thing. Any company being asked to do something by the government that they have plausible reason to believe is illegal should push back. Otherwise, there are no checks and balances at work. We call that a police state.

Another possibility, I suppose, is that the telecoms are balking about doing things that we don't even know about -- and are worried that they could be sued once we find out.

At any rate, none of these points argue for retroactive immunity.

The Latest

Eggen and Nakashima's piece in Sunday's Post points out: "A prime goal in the litigation is to find out who the decision-makers were, said Don Migliori, a partner with Motley Rice in Providence, R.I., a plaintiffs' attorney who is working on the lawsuit against Verizon. The plaintiffs intend to request not just government documents but also e-mails, including who contacted whom and when. . . .

"Peter Eliasberg, an American Civil Liberties Union attorney involved in cases against AT&T and Verizon, said that if the cases proceed, the plaintiffs could submit an interrogatory to the carriers seeking answers to the questions: Did you turn over customer phone records en masse to the government? Did you receive a warrant or a subpoena?

"Answers to those questions, he said, might reveal that 'everybody in the country' has had their phone calls 'combed through, and lots of people will be outraged.' . . .