Clarification On Telco Immunity February 23
I don’t think my prior post on telecom immunity explained what I meant very well. Ultimately my concern with holding the telecom companies liable for privacy violations under the current rules is that these rules, like most of our laws, were not designed to be enforced with computational precision. While my recent depressing experience with the jury system has shown me how ridiculously (and disturbingly) far this view can be taken (letting sympathy control) even congress takes it for granted that the prosecution and enforcement of most laws will be curtailed by common sense and good judgement. When the legislature writes laws about speeding it doesn’t write in exceptions for every possible contingency (say taking someone in terrible pain but not at risk of death to the hospital) but expect prosecutors and juries to exercise their judgement and not enforce the law when it leads to perverse results. A brief look at the FISA legislation reveals it is no different.
Critically FISA does not contain any general procedure to handle exceptional circumstances. If the government ever discovered compelling evidence that one of the 5000 people with a certain first name in the US had a live nuclear bomb and planned to detonate shorty FISA would offer no legal means of handling the situation. In this case attempts to execute physical searches on these people might risk spooking the terrorist into early detonation (and is no less of a constitutional violation) and the right answer (if the intel was good) would be to simply monitor all the communications of those individuals and pay them damages after the fact for the constitutional violation. However, FISA doesn’t allow a warrant to be issued without probable cause and being one of 5000 people with a particular name just doesn’t qualify and the executive couldn’t even plausibly bluff the telecoms with one of the non-warrant provisions as they only apply to non-US persons. This is just one hypothetical but it illustrates the point that FISA simply can’t handle all exigent circumstances and may sometimes need to be ignored just like we ignore other laws in an emergency.
I don’t think this is a flaw in FISA. We can’t have a general legal process to handle monitoring in truly exigent circumstances without creating the potential for massive abuse by the executive. Rather the law should continue to make these acts illegal so only when the decision maker is suitably convinced of the need to head off imminent danger that they risk legal penalties and do it anyway hoping that people will choose not to prosecute them after the fact. The question is who should be making this call.
Currently the FISA process places that burden primarily on the telecoms. A poor choice as they aren’t in a position to evaluate the true danger being faced. I would agree completely with the strict enforcement of liability against the telcos in the future so long as we tweaked the law to allow the attorney general to issue the telcos a letter assuming their liability for them. Issuing such a letter in violation of the law would carry a criminal sentence for the attorney general ensuring it would only be used in truly exigent circumstances but merely knowing such a general purpose out existed would relieve the telcoms of the need to judge the severity of an illegal request and try to guess how it will be viewed in several years and allow them to always follow the letter of the law.
As far as the current lawsuit is concerned I see a very small benefit and, so long as we retain the current framework, a danger of causing them to second guess government claims of exigency in the future. Or to put the point differently I kinda feel that back when this program started the telecoms were between a rock and a hard place. Remember the (kinda insane) attitude people seemed to have after 9/11? If the telcos had refused to hand over data even if it was illegal when the government said it was vital to stopping terrorists and it turned out that we failed to avert a major attack as a result they would have been held responsible. Once the telcos had signed on to the program they couldn’t very well back out once they realized government officials had overstated the danger since that would simply appear to be an admission of guilt to a jury with retrospective bias.
Again, if the question is ‘who should be making this call’, I’m not sure what’s holding you back from agreeing with the answer given in my previous comments, viz., a judge. Let him bend the law and grant a warrant in violation of FISA if it’s truly necessary. There’s no need to grant absolute power to the executive — that’s just asking for trouble.
Umm, because he is a judge! The entire trustworthiness of our judicial system is based on the idea that they are there to correctly interpret the law. You open up a HUGE can of worms if you say that you are going to have judges making illegal decisions. In every situation where in fact judges override the implementation of some law they rely on or develop some general legal standard about the matter (e.g. common law means you presume a necessity defense exists). If you gave judges the special override button (i.e. made it legal for them to decide it was an exigent circumstance) then you have several problems.
First, you aren’t going to be able to offer a definition of exigent circumstance that will cover all cases without risking substantial overbreath. I mean you want the government to go ahead and violate the privacy standards when they are certain that a nuclear weapon is involved and millions will die. You don’t want them using it when they are certain that a mob hit may go down and one person will die. Short of writing out a massive equation weighing the harms of various types of deaths, suffering and economic disruption (assigning a dollar value to a life won’t be emotional at all) you won’t be able to write out a specific standard because the entire point is that it’s an unanticipated situation. Thus you would have to use something like, ’substantial probability of massive death or suffering’ which in itself would be dangerously open to lenient interpretations.
Second, even going to a fairly vague standard you won’t be able to write a legal standard capturing the sort of behavior we expect. Ultimately what we want is some sort of reasonable trade off between the badness of breaking the law and violating privacy and the potential to avert harm. That means we need a judgement of whether this action is a good idea and a legal standard simply can’t capture that notion. If you tried to make a judge responsable for deciding if it was a good idea to approve a special exception the supreme court would overturn the law as a violation of separation of powers. Just as congress couldn’t grant the president the legislative power of the line item veto they can’t delegate executive/legislative power to judges.
Third, this proposal offers no real advantages. Judges are just people too and are also appointed by presidents. The reason judicial opinions seem more principled and trustworthy is because they are trying to perform an interpretive task not an executive one. Not only would judges be no better about making the choice as to whether something is a good idea the proposal risks further politizing the judiciary and imperiling our whole system. This is also another reason why you don’t want the judges doing something downright illegal. Also, we don’t want to let the executive shop around for the judge who is going to be most likely to approve something but nor do we want to select a particular judge and require everything to go through him (what if he dies, is sick etc… the judiciary isn’t set up to handle emergency succession like the executive).
Third, if the judge is understood not to be on the hook (i.e. go to jail) if he overrides the law and lets them examine anyway then it offers substantially less protection than my plan. The key point here is that any standard that doesn’t simply make it a crime to override the legislation won’t really have any force. You need a system where it is flat out illegal for them to do something to be a sufficent barrier so that the only way they will get off the hook is by an active decision of congress to forgive them. The best we can do is create both massive civil penalties against them and criminal ones. But once you have someone on the line for criminal penalties they can’t make that deciscion on partial evidence. The judge can’t know if the executive cherry picked the evidence for him. The AG will know. Besides, it would be harder to justify pardoning your own AG for this decision than it would to pardon the judge since people might be sympathetic to him will seeing the AG as a coconspirator.
Finally, all that really differs about what i think should be done and what you think should be done is that I think the law should let the AG change things so that he is getting personally sued (and face jail time) rather than the phone companies. How can this possibly be worse?
Or to put it differently, the AG can already go ahead and break the law to get whatever he wants done so no additional risk is taken by letting him personally absorb the phone companies liability.
Okay, I don’t object to transferring responsibility from the companies to the AG. I’m just concerned with your stance that companies ought to acquiesce to whatever the Executive asks of them. We both agree that Telcos should not be making the call here. But your suggestion is that they blindly follow the Exec, whereas my suggestion is that they stubbornly refuse to acquiesce until the Exec produces the appropriate third-party seal of approval.
Presumably at some stage, you think there is some trustworthy third party with the discretion to decide whether the Exec will get in trouble for breaking the law or not. My puzzlement is why you wait so long for their involvement. Rather than assessing the dubious action after the fact, why not require them to secure clearance beforehand?