Why Not Give Immunity? February 19
So obviously it’s good for telephone companies to generally follow the laws about the disclosure of our private data. However, while for most violations of the law there is a compelling argument to exact penalties to deter future behavior I’m far from convinced that this is the case with respect to the involvement of the phone companies in the domestic spying scandal. In particular do we want the phone companies to be second guessing national security requests?
It’s a complicated question but my intuition is that the answer is no. Whatever you think about how clearly illegal their decision was in this particular case what’s relevant for the future is the fact that it’s certainly possible for future government requests to occur in a grey area of the law, especially if they invoke special emergency provisions. Moreover, whether we like it our not in practice the law doesn’t really penalize what it says is illegal on the books. Rather we apply the law flexibly ensuring that what might be technical violations of the law aren’t treated as such in exigent circumstances. However, the only reason not to grant immunity to the telecoms is to create a precedent demanding they second guess executive requests and refuse those they decide are ‘illegal.’ But given our tendency to bias our interpretation of the law depending on the context this means that the telecom companies would have to be making judgements on the actual seriousness of the claimed threat. Even though a genuine urgent, serious need for the disputed information would have caused us to forgive and forget the administrations requests it simply wouldn’t suffice as a defense for a telecom to now try and claim they were justified in bending the rules because it might have been a serious situation.
Now the telecoms aren’t exactly an optimal place to put responsibility for weighing the seriousness of executive need for information and thus what constitutes acceptable grey areas and unacceptable overreaches. I agree this would hardly be a compelling point if there was some great service the telecoms could provide by holding out but the truth is that the executive branch has so many tools and methods for violating the privacy of americans that this liability really brings no benefit. In fact to the extent that people put any faith or trust in this sort of safeguards rather than placing the safeguards and penalties inside the government it puts us at further risk.
I don’t think we should eliminate the law under which the telecoms could have been liable. If it happens again they should need to get another immunity bill passed. Nor do I think the democrats should just role over and sign this bill without a fight. The condition for granting immunity should be a full disclosure by the administration to congress (who could then collectively decide what to disclose to the people) of the full extent of these problems. Then congress should work on passing bills that make high ranking government employees personally liable for knowingly making illegal requests of telecom companies. These people have the information and position to know what is going on and they should be the ones taking the risk in extreme circumstances.
[Damn computer ate my comment. Let's try that again...]
I agree that the priority should be holding the executive to account. But I’m not sure why we should want to make executive overreach any easier than it already is. They can easily get a warrant if “national security” is really at stake. To let them skip this step, and have companies cooperate with any old executive order (no matter how blatantly illegal) seems unmotivated. (I mean, the executive is clearly motivated by the hope of sidestepping judicial oversight. But there’s no reason for the rest of us to accept this.)
You effectively seem to recommend granting the executive absolute power, and only hold them to account for how they (ab)use it after the fact. I would think it wiser to check their power right from the start; and that means upholding the rule of law.
One more thing: the oddest thing about your post, I think, is this notion that holding companies to the law means granting them discretion to make a judgment call as to whether the law is worth breaking or not. This is entirely backwards. The simple no-discretion route is not to have the companies do whatever the executive asks. It’s to have them obey the law.
Cf. Brad Templeton: ‘If, as the law requires, the phone company says “come back with a warrant” this puts the question of whether the program is legal in the hands of a judge. The phone company is saying, “this is not our call to make — let’s ask the right judge.”‘
This shouldn’t be a controversial issue.
The point I was making is that in fact we virtually never just ‘enforce the law.’ Having just served on a jury I can report first hand evidence that we virtually always color our enforcement of the law with our feelings about the goodness or badness of what happened.
Basically I think the question is whose call should it be to bend/break the law. THAT person should face serious consequences for choosing to do so without huge risk but it should also be someone who will be in a position to make an informed decision about it.