FISA amendment

Another interesting thing happened at the judiciary committee hearing that had nothing to do with the contempt resolutions. The committee debated, and ultimately killed, an amendment that would have attempted to strike a balance between telecom immunity and telecom, um, munity. A lot of you are already familiar with the idea, but the amendment--written by Specter and Feinstein--would have switched any civil liability the telecoms might face over to the United States. Basically, if you sue Verizon, you're actually suing the government.

I reflexively reacted against this weeks ago in a post that I can't find anymore. The basic gist was, "Oh what a fantastic system: break the law and the taxpayers will cover your legal and punitive costs!"

But for once I heard a decent--though unconvincing--argument in its favor. It came from Sen. Sheldon Whitehouse, one of the sharpest Democrats in Washington, in response to a feverish onslaught by Jeff Sessions of Alabama.

Sessions was arguing for telecom immunity by analogy: If a police officer yells at you to "Stop that man!", and you tackle him to the ground, and he turns out to be innocent, AND he sues, then his case will be thrown out. You committed what appears to be a crime (battery), but you've done it in a good faith attempt to help agents of the law.

But, of course, this analogy doesn't agitate for a blanket grant of immunity at all. What it does is puts faith in the courts to accurately assess the "goodness" of your faith, and to not convict people attempting to do good in the world. The liability, then, falls to the police department.

And that's Whitehouse's point: If the telecoms were acting in a truly good faith effort to abide by the law of the land--to abide by the diktats of people appointed to keep the country secure--and fell afoul of that law because of government malfeasance, then it's the government who should cover the costs.

Interesting. But, I think, wrong. For one, as I' ve noted in the past, the government and the telecoms aren't strangers to one another. Rather, in many ways, they are collusive forces, and there's no reason to believe--but also no way to disprove--that (for whatever reason) the telecoms had no idea any of this NSA stuff was nefarious. There is, on the other hand, plenty of reason to suspect that government officials called upon their friends in industry to give 'em a hand with the terra war.

Second, and related, is the nature of the decision making process. The man on the street has to react now. Verizon, by contrast, has lawyers. They're smart people. They had time to consider the proposal the government approached them with and time to conclude (as I believe some did) that they ought not comply.

Third is the jurisdictional problem. The police officer is tasked with enforcing the law on the street. And though you may not be obligated to put yourself at risk when an officer asks for your help detaining a suspect, if you choose to do so you at least know with some confidence you're being asked by somebody following a legal protocol. When the NSA approaches a telecom to say "help us break the law spying on Americans" it's not quite the same thing.

There's probably more. Add to the list if you like. But as I said up top, the amendment failed, so it's really just food for thought at this point.