The WSJ editorial page lies about our surveillance laws There are very few opinion venues -- if there are any -- more brazenly fact-free than the Editorial Page of the Wall St. Journal. They have an Editorial this morning warning of all the grave dangers posed by efforts from the "anti-antiterror left" to limit the Leader's warrantless eavesdropping powers -- the most dangerous of which, they warn, is the campaign "to deny legal immunity to telephone companies that cooperated with the government on these wiretaps after 9/11." The Editorial is filled with one demonstrable factual falsehood after the next. Just marvel at this paragraph, incoherent and false in equal parts: By far the worst threat is an amendment from Senator Chris Dodd (D., Conn.) to deny legal immunity to telephone companies that cooperated with the government on these wiretaps after 9/11. The companies face multiple lawsuits, so a denial of even retrospective immunity would certainly lead to less such cooperation in the future. This is precisely the goal of the left, which has failed to get Congress to ban such wiretaps directly but wants to use lawsuits to do so via the backdoor. The assertion that Congress has failed "to ban such wiretaps directly" is an absolute lie and there is no other way to phrase that. The reason there are lawsuits brought against telecoms isn't because of some cliched liberal-judicial-activist effort to impose on telecoms obligations which don't exist in law. The opposite is true: the lawsuits were brought precisely because telecoms violated multiple clear, long-standing laws that make it illegal to do exactly what they did: namely, allow government spying on Americans and access to their customer data without judicial warrants. Section 222 of the Communications Act of 1934 provides that "[e]very telecommunications carrier has a duty to protect the confidentiality of proprietary information of . . . customers." 18 U.S.C. 2511 makes warrantless eavesdropping a felony; 18 U.S.C. 2702 requires that any "entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication" without a court order; 47 U.S.C. 605 states that "no person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception"; and 18 U.S.C. 2520 provides for civil damages for any violations. Like all statutes, those are all laws democratically enacted by the American people through their Congress and signed into law by the President. They were enacted precisely in order to make it illegal for telecoms to allow government spying on our calls and written communications without court orders -- precisely because Americans discovered that telecoms had previously allowed unfettered government spying on our communications and wanted to make it illegal for them to do so ever again. Those are exactly the laws the telecoms broke, in exactly the way that the American people wanted to prohibit. To claim, as the WSJ does today, that "the left" is using lawsuits as a "backdoor" because it "failed to get Congress to ban such wiretaps directly" literally could not be more false and misleading. And, as always, the falsehoods are bolstered by Bush-following lawyers who are single-mindedly devoted to the authoritarian goal of increasing unchecked government power, such as former federal prosecutor Andy McCarthy, who hails the WSJ Editorial as "superb" despite what he must know are its undebatable falsehoods about the law. There is an honest way to argue in favor of telecom amnesty, and it is, of course, exactly what amnesty advocates like the WSJ, Andy McCarthy, Jay Rockefeller and the rest of them desperately avoid. This is the only honest case one can make for this radical gift to telecoms: Yes, telecoms violated multiple federal laws by enabling government spying on Americans and turning over communications data without warrants. They broke these laws not only in the aftermath of 9/11, but for years and years. By breaking these laws, they reaped enormous financial profits, as the Government paid them huge fees for their cooperation in the illegal spying program. Despite their having broken multiple federal laws and having committed felonies -- while reaping great profits in the process -- they ought to be granted retroactive amnesty and immunized from any consequences for their lawbreaking, otherwise they may be reluctant to break our laws in the future. The telecom amnesty debate is controversial but it is not complicated. The Government asked telecoms to break numerous federal laws in exchange for profit. Some telecoms refused to do so and others -- such as AT&T and Verizon -- agreed to break the law for years. Which behavior do we want to encourage and reward -- (a) telecoms which turned down the substantial government contracts to enable warrantless spying on Americans because doing so was illegal, or (b) the telecoms which purposely broke our laws by allowing illegal government spying on Americans? How can that even be a debatable question? As the Senate votes on amnesty tomorrow, the only real question is whether telecoms which broke our laws should be accountable in a court of law for their illegal behavior (the way things are supposed to work in a country that lives under the rule of law) or whether Congress, lavishly funded by this industry, will pass a law that has no purpose other than to give them the retroactive license to break our country's laws with impunity. The shamelessly fear-mongering claim that telecoms won't "cooperate" in the future without amnesty -- a central prong of the WSJ's Editorial, needless to say -- is nothing more than the standard authoritarian tactic of warning that unless we succumb to Bush's demands and give the Government and its allies everything they want, we're all going to die at the hands of the Terrorists. Telecoms were already granted prospective immunity by the Protect America Act -- meaning they cannot be held liable in the future if they act pursuant to government certification that the requests are legal. That already ensures all the "cooperation" that we could possibly want. Moreover, we want telecoms and all other private actors to be incentivized to abide by the law, not to break the law. That's why we enact laws in the first place, along with penalties for breaking them -- because we want an incentive scheme that causes companies to refuse illegal requests from the government. The full-scale immunity that Congress is about to bestow rewards lawbreaking and incentivizes rational telecoms to ignore our laws in the future, knowing that they are free to act illegally without consequence. What rational person would want to endorse that framework? The persuasiveness of an argument can often be determined by the willingness of its advocates to confine themselves to the truth when making it. That telecom amnesty advocates resort to demonstrable falsehoods -- literally pretending that telecoms did not violate multiple laws when allowing warrantless spying -- is a powerful testament not only to their lack of integrity but also to the deceit and corruption that forms the crux of their efforts. Whatever else is true about these telecoms that are about to be granted this extraordinary gift from Congress -- no matter how many times they are lavished with the creepy Orwellian phrase "patriotic corporate citizens" -- it is undeniable that they are deliberate lawbreakers. That's why they need amnesty in the first place. Any amnesty advocate who denies that central fact is arguing from a position of deep dishonesty. Bestowing retroactive telecom amnesty is nothing more than the latest step in creating a two-class legal system in America, where most citizens suffer grave penalties if they break the law, while our most politically powerful and well-connected actors are free to do so with impunity.
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