Should AT&T be held responsible for NSA cooperation?

Federal law clearly states telecom providers that help the feds with warrantless wiretapping can be sued. So why does the president insist the law be changed retroactively?

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
3 min read

The Bush administration's remarks about retroactive legal protection for telecommunications companies show Washington has become an even more surreal place than usual.

First, President Bush saidon Wednesday that federal law "must grant liability protection to companies who are facing multi-billion-dollar lawsuits only because they are believed to have assisted in the efforts to defend our nation following the 9/11 attacks."

Then Ken Wainstein, the Assistant Attorney General for the National Security Division, waxed eloquent with a surfeit of "allegedlys":

Here you have allegedly companies that stepped up and answered the government's request to assist the government in efforts to protect against a second wave of attacks after 9/11 and protect against the ongoing terrorist threat... And any such companies who would have undertaken anything like that would have presumably done it for that very purpose. As far as I can see, there's no real, you know, other ulterior motive or economic motive for doing it. And it just seems at sort of a gut level it seems to me to be unfair to now turn around and have them face, you know, not only the costs and difficult consequences of having to defend against litigation, but based on what I read, you know, potentially crushing liability, you know, to the tune of billions of dollars. And so it's sort of a fairness matter. That's where I come out.

I also, as we've mentioned before, this litigation does run the risk of disclosing secret information, very classified, sensitive information. Because as you know, all such operations, any alleged operations like this, would be very sensitive and be the kind of thing our adversaries would want to know about. And whenever you litigate something like this, you run the risk that you're going to disclose this information.

And another thing that also resonates with me is that, you know, any companies that might allegedly have assisted us in the effort against terrorists might well not want it disclosed that, you know, for security reasons, that they did help us out. These would be--any such companies would be companies that would have valid concerns for the safety of their own assets and their own personnel.

Did you catch the last argument? AT&T and the other telecommunications companies that may have opened their networks to the Feds are worried about "the safety of their own assets and their own personnel" if word got out.

This is a fine example of McCullagh's Law in action: Unless you vote my way, Americans will die. (Is the Bush administration really serious about this, by the way? Do they think that gun-toting privacy activists will start kidnapping or shooting AT&T network technicians?)

Anyway, maybe I'm just old-fashioned, but it strikes me that if a company violated the law, they should be held accountable. I might feel differently if the law is unjust, but I'm not convinced that's the case here.

18 USC 2511 generally says that anyone who "intercepts" a private electronic communication or "discloses" the results of that interception shall be imprisoned for up to five years. In addition, 50 USC 1810 says that anyone "who has been subjected to an electronic surveillance" of this sort can sue for punitive damages and attorney's fees.

AT&T and any other company that may have cooperated with the National Security Agency's warrantless wiretapping scheme knew these two laws existed to protect Americans' privacy. Its executives knew that breaking the law carried civil and criminal penalties. If they nevertheless went along with the NSA's secret requests--and violated their own customers' privacy in the process -- why shouldn't their executives and shareholders pay the price?