Washington DC, December 25, 2007 --  

America's telecom companies deserve to be punished for betraying their customers, even if the Bush Administration is the bigger villain.

If you obey a bad cop who tells you to break the law, should you be punished? That, in essence, is the question before the Senate as it wrangles over retroactive immunity for telecommunications companies. Several major phone and internet carriers broke privacy laws by letting the heavy-handed Bush administration tap into customers phone calls and internet traffic in America's post September 11th panic. Facing millions of dollars in potential penalties from class action lawsuits, the companies, including AT&T, Bell South and Verizon are seeking help from their friends in congress.

Do they deserve this help? Consider an analogous scenario. Pretend you rent out the room above your garage. If a policeman comes by one day (without a warrant) and asks you to let him search your tenant's room to screen for criminal activity, do you comply? What if the law in your town says landlords cannot enter tenant space without prior written notice? Do you let the policeman in anyway?

The phone companies did essentially this with their customers' phone calls and internet traffic. In so doing, they broke privacy laws and were helping the nation's top law enforcement officials (meaning the Bush administration) break the Fourth Amendment to the Constitution protecting citizens against searches without a warrant. Regardless of intentions, there is no question that the telecoms were helping a bad cop.

Good intentions are a key part of the Bush Administration's call for immunity. In his Radio address 10 days ago, Bush said the companies "have done the right thing and helped their country." ¹ This opinion is not universally shared by all Americans, chief among them the plaintiffs in the lawsuits whose constitutional and privacy rights were allegedly violated by the surveillance. What is more important than intentions is the matter of law. By seeking the immunity, the Bush administration is all but conceding that courts will rule that the surveillance program broke the law.

This is where the case of the telecom companies diverges from the rented room analogy. Unlike a layperson dealing with a bad cop, telecom companies have entire departments of highly-paid and experienced lawyers who review these kinds of requests. While an individual may be easily forgiven for unknowingly running afoul of the law -- especially when asked to do so by a law enforcement officer -- large corporations must be held to a much, much higher standard. Simply put, they should have know better. Some proved that they did -- to their great credit, baby bell Qwest refused to comply with the Bush Administration's request.²

The other companies -- AT&T, Bell South and Verizon -- knowingly broke the law to help a heavy-handed government spy on its people. This is reprehensible, and deserving of punishment -- via class action lawsuits or otherwise.

President Bush warns that "without protection from lawsuits, private companies will be increasingly unwilling to take the risk of helping us with vital intelligence activities." So be it. Terrible abuses can result from unchecked information sharing between communication companies and governments. When Yahoo gave up the identity of a maverick reporter to the Chinese government, it landed the writer in jail.³

To be fair, this is not just an issue of the telecom companies doing wrong. It is also an issue of the Bush administration doing wrong, and the bad cop deserves to be punished, too. But given the president's limited time in office, the polarized environment in congress, and a general weariness left over from the Clinton impeachment battle, there is no chance that congress is going to take up this battle.

With the Washington Post reporting that a Democrat-sponsored back room Senate deal is in the works to grant the immunity⁴, freedom-loving Americans must speak out before its too late. The telecoms who betrayed their customers must be punished for their misdeeds, and the Bush administration shamed in the process.

Related Web Columns:

Trolling Though Your Life
The Betrayal of Telecom Customers, May 16, 2006

Notes:

1. UPI, Bush: Telecom Immunity Imperative, February 23, 2008

2. Washington Post, Former CEO Says U.S. Punished Phone Firm, October 13, 2007

3. BBC, US Rebukes Yahoo Over China Case, November 6, 2007

4. Washignton Post, Wiretap Compromise in Works, March 4, 2008