Save Access

Retroactive immunity from prosecution is a beautiful thing if you're a major telecommunications provider in the US, and phone companies are about to receive it if the Bush administration gets its way. The administration's new appropriations request for intelligence agencies was recently disclosed at a hearing of the Senate Select Committee on Intelligence, and it includes a massive gift to the phone companies who have been (can we drop the "allegedly" at this point?) helping the NSA and other agencies. Prepare yourself for the longest single sentence you have ever read:

Notwithstanding any other law, and in addition to the immunities, privileges, and defenses provided by any other source of law, no action shall lie or be maintained in any court, and no penalty, sanction, or other form of remedy or relief shall be imposed by any court or any other body, against any person for the alleged provision to an element of the intelligence community of any information (including records or other information pertaining to a customer), facilities, or any other form of assistance, during the period of time beginning on September 11, 2001, and ending on the date that is the effective date of this Act, in connection with any alleged classified communications intelligence activity that the Attorney General or a designee of the Attorney General certifies, in a manner consistent with the protection of State secrets, is, was, would be, or would have been intended to protect the United States from a terrorist attack.

That's from section 408 of the proposed bill, and it's buried beneath the innocuous headline "Liability Defense." As the government explains later in an analysis of the bill, "companies that cooperate with the Government in the war on terror deserve our appreciation and protection—not litigation." Any court case dealing with the issue would be thrown out of court, and the protection would include all phone company interaction with the intelligence community since September 11.

The issue of whether any of this behavior was legal is not important. The government has already argued that legality doesn't matter when it comes to the phone companies, since even a ruling that their actions were illegal would expose the existence of the intelligence-gathering program in question. Therefore, such cases should not even be considered by the courts.

Kenneth Wainstein, an assistant attorney general at the Department of Justice, told the assembled Senators that this provision of the bill would simply "fill a gap in our laws" by allowing the phone companies to assist the government.

When news of the NSA's alleged wiretapping of American firms (with their knowledge) broke back in 2005, we reported on the powerful technology apparently being deployed inside secret rooms at telco facilities. Despite the fact that this raised all sorts of questions about domestic surveillance and legality, Congress decided that it simply wasn't worth looking into after hearing from Vice President Cheney about the matter.

With Congress unwilling to figure out what was going on, individuals and advocacy groups began filing lawsuits against the phone companies. The EFF and others argued that communications privacy laws had been violated, but the government countered by claiming that a "state secrets" privilege meant that the cases should simply be thrown out. Though some cases were dismissed, the EFF's case against AT&T continues, though it would also be dismissed if the proposed new legislation passes.

With the Democrats now holding much more power, though, it's not clear that the blanket immunity grant will survive. However, the bill itself needs to pass in some form in order to keep funding the US intelligence apparatus.