Telecom Immunity: But What About The Really Illegal Stuff?

I’m not a big fan of the idea that Big Corporations, at the moment Telecoms, have become a branch of the Justice Department to “protect us” from whatever we need protecting from at the moment.  Put together, we have Telecoms working for the government protecting us from communists terrorists.

I know this isn’t the sexiest story around, but it’s one of the scariest.  The impact to privacy, per lawprof Kerr’s model of “private laws,” demands the highest level of scrutiny.  The government has gotten the phone companies to let them listen in on our personal conversations, people.  Does this not concern you?  I know that I don’t want my conversations with my kids, filled with all that lovey-daddy stuff, heard by anyone else.  It’s embarrassing.

Lawprof Mike Dorf thinks this is a problem.  He’s posted an interesting theoretical conversation to make his point:


Suppose an FBI agent approached a generally law-abiding citizen that I’ll call “Shmerizon,” and the following conversation ensued.

FBI Agent: I’d like you to whack Shmarlos the Shmackal. He’s a terrorist.

Shmerizon: By whack, you mean . . . .

FBI Agent: You know what I mean.

Shmerizon: Uhm, isn’t that illegal?

FBI Agent: I’m with the government. If I tell you to do this in the interest of national security, it’s not illegal. Understand?

Much as I love this little exercise, it’s not quite analogous.  At first blush, it’s hard to ignore the difference between the malum in se aspect of murder, compared to the malum prohibitum nature of eavesdropping.  With a piece of paper, eavesdropping turned from a bad thing to law enforcement at its most effective.  Murder is a little different, as long as you don’t think about capital punishment too hard.

Lawprof Kerr thinks it misses the boat because the Telecoms acted pursuant to a “certification” from the Attorney General pursuant to 18 U.S.C. 2511(2)(a)(ii)(, meaning that granting the Telecoms immunity just preempts a lot of wasteful, losing litigation.  Oddly, I wonder why Orin didn’t question the propriety (not to mention constitutionality) of this certification?  Since when does Congress get to pass laws eviscerating our rights under the Fourth Amendment?

But my problem with all of this is different.  Regardless of the validity of this certification argument, the discussion relies on our acceptance of a blatant falsehood:  That they are only eavesdropping on communications for the purpose of stopping terrorism. 

This is why I believed that the New York Times story, where our highly trustworthy government officials admitted that this was a fabrication, intended to calm the frayed nerves of gullible public, was so critically important.  Now that our government camel has its nose under the Telecom tent, they are spying on us for the purpose of general criminal conduct.  Screw terrorism, they are listening to whatever they want.

While the certification argument may well prove accurate if we accept the fantasy that this is all about terrorism, suddenly lawprof Dorf’s point is looking a lot better when we step back and look at the reality of what our beloved government is really doing.  By combining the deception that is being perpetrated on the public by the government under cover of terrorism, with the invasion of our private communications, it comes much closer to the evils of murder than the benign “administrative” approach of the AG’s certification.

While I don’t blame the lawprofs for considering this issue from a purely legalistic approach, it would be far more useful if they were playing with a full deck of facts rather than adopting the government’s fictional approach that this only has to do with protecting us from terrorist attack.  Given that the government quietly concedes that they can’t stop themselves from enjoying unfettered access to private communications, like a bunch of lawyers on information heroin, can we still dismiss the role of the Telecoms in this so easily?  Not in my view.

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4 thoughts on “Telecom Immunity: But What About The Really Illegal Stuff?”

  1. David Tarrell

    Thanks for highlighting this story, as it’s not getting the attention it deserves. What it reeks of, to me, is a corporate/government alliance which has scary implications for the Fourth Amendment, and the state of our democracy in general.

    When you consider Nacchio’s argument, (he’s the former CEO of Qwest, which unlike the telecoms who want immunity, refused to grant access) that he was prosecuted for making false statements to shareholders when he was actually targeted for refusing to go along with the govt’s request for illegal spying, the implications are terrifying for anyone who cares about limiting the power of government.

    I’m no expert on Nacchio’s claim , but apparently he was prevented from offering much information on his defense that his claims to shareholders would have been accurate had Qwest not lost government contracts after the company’s refusal to cooperate with an unlawful request to spy.

    Nacchio’s appeal is being heard this week, so it will be interesting to find out what it reveals about whether the prosecution was retaliation and whether he was able to fully offer this defense at trial.

    So far, telecom immunity is being described in the media largely as corps acting in good faith to a government request but what’s not being highlighted is Judge Reggie Walton’s finding that it was obvious this request was illegal.

    In short, the public hears the issue as whether we should cut corps a break when they’re giving information on terrorists when the real issue is whether we should change the law to protect them after they broke it, revealing information about all of us in the process.

    Hopefully we can find a way to make this story “sexy” enough to provoke discussion about it, because, you’re right, it’s very scary. What’s at stake is whether people and corps powerful enough to push to change the law after violating it, should be allowed to do so.

    Why is it when we argue that the state violated the Constitution, it’s described as a “technicality” but when CEO’s argue that the law should be changed after they break it, it’s called “helping to fight terrorism?”

    My motivation, as a criminal defense lawyer, isn’t helping people break the law, it’s making sure the state follows it as they prosecute my client and that it applies equally against the boss and the beggar.

    If we change the law to save these CEO’s from breaking the law, it would just show that not only is it true that “he who has the gold, makes the rules” but that “he who has gold and breaks rules, gets to change them when he gets caught” which is pretty scary indeed!

    (Sorry if this turned into a rant, but you’re right, it’s an important issue! I promise to cut back on my caffeine intake and the length of my comments in the New Year!)

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