As Orin noted below, one of the most significant changes to FISA is that ISPs and Telcos are now required to cooperate with the program. Yet according to today's WSJ (subscription only), the FISA reforms do not resolve questions about ISP and Telco liability for cooperation with the program in the past.
he measure lacks a provision sought by the White House and telecommunications companies: protection from lawsuits filed against phone companies by privacy groups and customers for past cooperation with government spy programs.
Under the expansion of surveillance authority since Sept. 11, 2001, some major phone companies have complained that their cooperation has left them vulnerable to legal liabilities. AT&T Inc. and Verizon Communications Inc. have been sued by civil-liberties groups and state-utility regulators. Some phone companies have curtailed their cooperation with intelligence programs in recent months, according to people familiar with the matter. The new law instead provides a more limited element of legal cover by compelling phone companies to cooperate. . . .
Partly to tackle the companies' concerns, the new law includes language that compels telecommunications providers to cooperate with government intelligence surveillance orders. The compulsion order is critical, because it provides phone companies with a ready-made justification if sued. The law also explicitly gives telecom companies protection for future cooperation with government surveillance programs.
However, absent from the law is a blanket liability protection to absolve companies for any privacy violations that may have occurred during their cooperation with earlier surveillance activities. The White House pushed for such a measure and has promised to try to have it included when a long-term update to FISA is considered, probably later this year.
UPDATE: Jack Balkin notes liability protection remains high on the Administration's wish-list and offers some thoughts.
Related Posts (on one page):
- Are Telcos Still Liable for NSA Cooperation?
- My Take on the New FISA Amendment:
- More on What FISA and the Fourth Amendment Requre -- And What They Don't:
John, that is probably why the statute provides for fines, rather than requiring those surveilled to prove damages.
Consider the recent case where the police, serving a warrant on the wrong house, required a man and his wife to get out of bed, even though they were naked, and allow themselves to be visually inspected. You may not see any but nominal damages in such a situation, but I think you would be among the minority of Americans in that respect.
So what's the big deal about past violations?
Besides the fact that they broke the law? If that doesn't bother you, then I can't imagine what else I could say that would change your mind.
Sammy, if they *did* "have every reason to believe the Feds were serving a lawful order," then they can prove same in court.
Whether they *did* have such reason, or not, is a disputed question. N.b. that one or more telcos appear *not* to have complied, because they believed the order was *not* lawful.
Normally, where someone may have broken the law, he doesn't get to say "but I thought it was okay" and have the Congress respond with "why, all right then, we'll just pass a statute immunizing you from liability."
Please explain why the American consumer should pay for the Telco’s court costs.
Maybe this belongs in Overlawyered, but suing the Telco’s smacks of suing every deep pocket in sight no matter how tangentially involved in hopes one of them will chicken out and pay up.
“This is not a happy day for the general counsels” of the phone companies, he said. “If you have a class action involving 10 million Americans, that’s 10 million times $1,000 — that’s 10 billion.”
NYT - 5/11/2006
As to not caring about past violations, I do. But I thought this was just a civil damages matter of little consequence. As I said, I didn't realize there were fines.
Breathtaking logic. I guess there's no reason the American consumer should pay for any company's court costs, or for any damages awarded against it in court. So Ford blew off the impact reports on the Pinto -- why should *I* pay more for a Ford because of it?
I might have thought that a telco saddled with huge costs might become less competitive as it struggled to pay them, so that consumers would switch companies and thus *not* pay those increased costs. But then, the violator telco might go out of business, leaving ACTUAL AMERICANS unemployed.
Clearly, the best recourse is never to hold an American company liable for anything.
I think this has real potential as a GOP campaign plank in 2008, and I hope that Sammy will bring it to all the candidates' attention. I can see Giuliani leaping at the idea.
--John, sorry if I was tart with you above; innocent questions sometimes get mistaken for other kinds of questions. My bad.
The government is not required to use the new procedures at all. The law says only that the DNI and AG "may" do so.
However, I think administration officials did immunize themselves and the government from prosecution and civil redress with regard to the now-defunct "TSP," by the flat declaration in Section 105A:
That provision applies flatly, whether or not the new procedures in 105B are invoked in the future.
I believe there's a statute which specifically preserves cases under the prior law unless Congress expresses an intent to void them. The statute may only apply to criminal cases (I read it a while ago and can't recall its exact terms).
There are no criminal cases pending.