An open letter to Senator Dianne Feinstein

Feinstein backs legal immunity for telecom firms in wiretap cases
Bob Egelko, San Francisco Chronicle Staff Writer
Friday, November 9, 2007

Sen. Dianne Feinstein said Thursday that she favors legal immunity for telecommunications companies that allegedly shared millions of customers' telephone and e-mail messages and records with the government, a position that could lead to the dismissal of numerous lawsuits pending in San Francisco.

In a statement at a hearing of the Senate Judiciary Committee, which is considering legislation to extend the Bush administration's electronic surveillance program, Feinstein said the companies should not be "held hostage to costly litigation in what is essentially a complaint about administration activities."

She endorsed a recent statement by Sen. Jay Rockefeller, D-W. Va., chairman of the Senate Intelligence Committee, that companies assured by top administration officials that the surveillance program was legal "should not be dragged through the courts for their help with national security."

Feinstein, D-Calif., plays a pivotal role on the Judiciary Committee, which has a 10-9 Democratic majority. If she joins committee Republicans in voting next Thursday to protect telecommunications companies from lawsuits for their roles in the surveillance program, the proposal - a top priority of President Bush - will become part of legislation that reaches the Senate floor.
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Feinstein offers compromise: secret court review of wiretap cases
Bob Egelko, San Francisco Chronicle Staff Writer
Wednesday, December 19, 2007

With the Senate at an impasse over protecting telecommunications companies from lawsuits for sharing phone calls and e-mails with the government, Sen. Dianne Feinstein says she has a possible compromise - allowing a secret court to decide whether the firms believed they were acting legally.

"This does not simply grant immunity. It forces the telecommunications companies to justify their actions before a federal court," Feinstein, D-Calif., said after introducing an amendment Monday to legislation that would extend President Bush's clandestine program of monitoring communications between Americans and alleged foreign terrorists.

A lawyer for AT&T customers who have sued over the company's alleged participation in the program said the amendment was an improvement over Feinstein's previous support of across-the-board immunity for telecommunications firms. But he said it still didn't go far enough to hold companies accountable.

The White House said the proposal would create unnecessary obstacles to immunity.
Legal protection for the companies, which are facing dozens of potentially expensive lawsuits in federal court in San Francisco, was the stumbling block as the surveillance issue reached the Senate floor.

Bush has promised to veto any bill that leaves the firms exposed to damages for actions he says were in the national interest. Opponents say immunity would reward lawbreaking and prevent courts from deciding whether Bush's 6-year-old surveillance program is constitutional.

With Democrats divided and Sen. Chris Dodd, D-Conn., threatening to filibuster a bill that would scuttle the lawsuits, Senate Majority Leader Harry Reid, D-Nev., postponed a vote until January. A law passed by Congress in August, authorizing Bush's program with limited judicial review but sidestepping the immunity issue, expires Feb. 1.
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An open letter to Senator Feinstein from U.S Policy Analysis

Senator Feinstein,

As citizens of California and of the United States, we are very upset by your continued support for the erosion of the rule of law in this country. You raised a red flag this past year when you voted in support of administration nominees who refused to openly answer Senate committee questions about their respect for the nation's laws. Now it appears you wish to make it official that US corporations can also act with impunity when they acquiesce to illegal requests from an administration?!?

We are frankly mystified that you would grant immunity to the telecommunications companies that collaborated with the Bush administration to unlawfully tap American communications. This surveillance was done without permission or oversight from the Foreign Intelligence Surveillance Court and in violation of the Stored Communications Act that protects Americans from unwarranted government intrusions on their privacy. If they are not held accountable now, why would they ever respect our laws in the future?

There must be significant consequences for illegal behavior. Neither the Congress nor the courts should ever grant immunity to a company when it behaves illegally, regardless of whether or not it claims to have acted "in good faith". Every telecommunications company has a clear obligation to understand the laws that govern it.

The Stored Communications Act prohibits the telephone companies from disclosing such information to the government unless they receive a subpoena or a court order for the records. 18 U.S.C. 2702(c), 2703 (c). The law on pen registers and trap and trace devices provides that no one may use such a device without obtaining a court order either under the criminal wiretap law or the Foreign Intelligence Surveillance Act. 18 USC 3121. After the Supreme Court decision in Smith v. Maryland, 442 U.S. 735 (1979), Congress specifically required the government to obtain a court order for pen registers and trap and trace devices, 18 USC 3121 et seq., and a court order or subpoena for records of past telephone calls. The laws could not be any clearer.

"Ignorance of the law" has never been, and should never be, an acceptable excuse for illegal activities. When did we last hear the defense that "we were only following orders"? With proposals like yours, it becomes clear that "it can happen here" too.