Updated ACLU One Pager on Telecom Immunity

TELECOM IMMUNITY IN S. 2248

Last month the Senate passed a bill that would allow the Attorney General to kill single-handedly all pending cases against telecommunication companies who illegally spied on their costumers during the last 7 years.  Conversely, the House smartly rejected any such “get-of-jail-free card” without a full airing of the facts.  With “compromise” legislation in the works, it is critical that Members vote NO on any legislation that substantially provides immunity – regardless of how many steps it takes to get there.  Ultimately, if the legislation doesn’t allow a court to determine independently whether FISA was violated, Members are urged to vote NO.

Members should reject legislation that in any way reflects aspects of the Senate bill that:

• Lets the Attorney General (AG) Kill Any Court Review of Warrantless Surveillance – Whether Under Currently Known or Unknown Programs. S. 2248 grants the Attorney General the sole discretion about whether current cases against telecommunications carriers will proceed.  The AG need only certify in writing to the court that either the telecom didn’t participate in the program or that it did so in reliance on written assurances from the President that the program was legal.  The court does not have the authority to determine if either of these are even true – only to determine if the AG is abusing his or her discretion.
  
• Lets the AG Gag Judges.  In addition to preventing court review, S. 2248 allows the AG to gag the courts for all intents and purposes.  The bill prevents the court from ever declaring whether the dismissal (also mandated by the bill) was meritorious – i.e. based on the telecoms’ non-participation - or a payback – i.e. based on a written assurance from the President authorizing their spying on customers.
• Prevents States From Enforcing Their Own Privacy Laws.  A number of states have begun investigating whether their own states’ privacy laws were violated by the warrantless wiretapping and release of consumer records after 9/11.  S. 2248 even lets the AG intervene in these state actions and prevents the states from protecting their own citizens and enforcing their own laws.
• Prevents Citizens From Enforcing Their Rights and Hides Government Wrongdoing. In addition to killing the cases seeking monetary damages, S. 2248 even kills the cases that only seek a ruling from the court that the behavior was illegal and that it should not happen again.  Instead of protecting the telecoms from liability, this power allows the government to shield its own wrongdoing and prevent any independent review of whether its wiretapping activities were indeed constitutional or criminal.
  
• Creates a Disincentive to Follow the Law in the Future. By letting the telecoms off the hook without any consequence – even a ruling that their behavior was illegal and should not continue – it sends the wrong message to those who have access to our private conversations and records.  When the government asks them to break the law in the future, they will have precedent that Congress will cover their tracks.