In
the News Fact Sheets
Striking Retroactive
Immunity
Fact Sheet on Dodd-Feingold Amendment
to Strike Retroactive Immunity December
17, 2007
S. 2248 would require the courts to throw
out lawsuits alleging that telephone companies broke the law
by participating in warrantless surveillance. If the immunity
provision became law, even if it could be proven that telephone
companies clearly and knowingly broke the law, they would
not be held accountable, and Americans’ privacy rights would
be nullified.
The Dodd-Feingold amendment would strike this automatic, retroactive
immunity provision and leave it to the courts to determine
whether the telephone companies acted properly and therefore
deserve immunity.
Myths
and Reality Regarding Immunity
Myth: The bill’s provision
is necessary to extend immunity to telephone companies that
responded in good faith to a government request.
Reality: Existing law already immunizes telephone companies
that respond in good faith to a government request, as long
as that request meets certain clearly spelled-out statutory
requirements. This carefully designed provision protects the
companies and Americans’ privacy by encouraging the companies
to comply with legitimate requests but not to comply with
requests that don’t meet the requirements laid out in the
law.
Myth: A vote against immunity
is a vote for liability.
Reality: A vote against immunity allows the courts to decide
whether liability is or is not appropriate, based on the facts
of the case. If the facts exonerate the telephone companies,
there will be no liability.
Myth: Telephone companies
should not be expected to know whether the government’s request
for assistance was lawful.
Reality: Telephone companies have a long history of receiving
requests for assistance from the government. In the 1970s,
they worked with Congress to devise a law that tells them
exactly which government requests they should honor, in terms
that are clear and easy to follow. And they have lawyers who
are well-paid to compare government requests with the requirements
of the law.
Myth: If we don’t pass
retroactive immunity, the government will lose companies’
cooperation in the future.
Reality: The immunity provision in current law gives telephone
companies an ironclad defense if they received a government
certification that meets certain clear requirements. It holds
companies liable for complying with non-compliant government
requests precisely because we don’t want the companies to
cooperate with illegal government programs. Preventing that
kind of cooperation, and protecting Americans from illegitimate
government snooping, is one of the main reasons FISA was passed.
Myth: The bill's immunity
provision is appropriate given the heightened urgency and
threat level in the immediate aftermath of 9-11.
Reality: The bill does not focus on the "immediate aftermath"
of 9-11; it would immunize illegal conduct even if that conduct
occurred five years after 9-11.
Myth: The common law immunizes
private parties that give requested assistance to government
officials.
Reality: If that were true, there would be no need for Congress
to step in. The truth is that the common law sometimes immunizes
private parties that give assistance to government officials
where that assistance is compelled by law. However, the common
law never immunizes private parties for providing assistance
to government officials when that assistance is clearly prohibited
by law.
Myth: The telephone companies
will not be able to defend themselves because the government
has invoked the state secrets privilege.
Reality: There is no precedent to suggest that a court would
rule against a defendant when there is privileged evidence
that could possibly exonerate that defendant. That simply
is not how courts handle such cases. But even if that were
a risk, the state secrets problem should be addressed directly,
in a manner that is fair to both parties.
Myth: These cases could
bankrupt the telephone companies.
Reality: If the companies engaged in such widespread illegal
conduct that the damages would be enormous, Congress can intervene
to limit the damages. That’s a far more appropriate response
than simply giving the companies a free pass for any illegal
conduct.
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