In the face of all predictions to the contrary, America has been kept safe since 9/11 despite terrorist cells' best attempts to pull off even more spectacular attacks.  Telecommunications Companies Who Assisted War on Terror Must Be Protected Against Frivolous Lawsuits

Democratic Congress Sides with Trial Lawyers, Punishing Telecommunications Companies that Acted in Good Faith to Assist Federal Authorities 

The company you keep often says a lot about you. 

When it comes to the debate about protecting telecommunications carriers from frivolous lawsuits filed by opportunistic trial lawyers after the carriers provided good-faith cooperation in the war on terror, this adage could hardly be more accurate. 

Opponents of such lawsuit protection notably include, among other left-wing beacons, the American Civil Liberties Union (ACLU), Senator Ted Kennedy (D - Massachusetts), and Hillary Clinton.  This alone creates a compelling presumption that immunity is a good and necessary idea. 

The simple fact is that telecommunications companies received legal assurances from federal authorities and provided critical assistance in fighting terrorist cells, but they cannot continue to do so if they aren't protected against dubious lawsuits.  Moreover, they should not be reduced to mere pawns in a purely political power struggle. 

This debate arises from the Foreign Intelligence Surveillance Act (FISA) and Protect America Act of 2007, which is set to expire on February 1.  Adopted during the Cold War in 1978, FISA aimed to regulate intelligence agencies' collection of information and communications between foreign powers.  Since that date, of course, and especially following 9/11, the focus of intelligence collection has largely shifted from foreign powers to terrorist syndicates and individuals. 

Furthermore, a dramatic revolution in telecommunications technology has obviously occurred since that date, rendering the original FISA statute largely obsolete. After all, such advances as the Internet, cellular telephones and email were little more than sci-fi figments of fancy at that time.  They now constitute the primary means by which terrorists communicate.  In today's fiber optic age, hundreds of millions of communications transmit instantaneously through American telecommunications networks, including calls from terrorists in one foreign location to another foreign location.  To somehow label this a "domestic" call on that basis, and thereby require time-consuming court warrants under FISA, defies common sense and jeopardizes American safety. 

With this in mind, FISA was updated along with the Patriot Act in 2001.  This has subsequently spawned good-faith debate, even among conservatives, regarding whether its provisions sacrifice too much privacy in the name of security. 

But regardless of one's views concerning the Patriot Act or FISA as government policies, we should all agree that telecommunications companies who received legal assurances from federal authorities before providing assistance should not be subject to capricious lawsuits from greedy tort lawyers and such activist organizations as the ACLU. 

The telecommunications carriers were approached by national security officials seeking assistance, and received legal assurances from the President and Department of Justice that the surveillance programs were both legal and necessary to battle terrorist conspiracies.  After providing that critical assistance, however, the carriers found themselves targeted by the usual band of predatory trial lawyers and hyperventilating leftist organizations, who accused them of violating the targets' alleged privacy rights. 

Since that time, Congress has failed to honor the legal assurances that the telecommunications companies received from federal officers by protecting them against the onslaught of lawsuits.  Instead, Congressional Democrats have bowed to their trial lawyer overlords and disgracefully hung the cooperative telecommunications carriers out to dry. 

Just this week, Senate Democrats chose to further delay consideration of this shield until Congress reconvenes in January, mere days before the February 1 expiration date. 

Should Congress irresponsibly refuse to act, the perilous consequences are obvious.  Private citizens and American companies will have no choice but to refuse cooperation in future efforts to combat terrorism.  After all, why risk near-certain protracted litigation and negative mainstream media scrutiny, even if American lives may be at stake?  And who will place any faith in legal assurances from federal officials, even at the level of the Department of Justice? 

Furthermore, the negative consequences of failing to provide lawsuit protection will have negative repercussions beyond the war on terror.  Among other issues, refusing retroactive immunity against these baseless lawsuits will undermine American telecommunications innovation because vital resources will instead be directed toward costly litigation and potential liability. 

Those are costs that we simply cannot risk. 

In the face of all predictions to the contrary, America has been kept safe since 9/11 despite terrorist cells' best attempts to pull off even more spectacular attacks.  This is due in no small part to American telecommunications companies' assistance in targeting terrorist cells and connecting the dots. 

Congressional leaders should keep this in mind as they consider lawsuit immunity, lest their frivolity deprive the war on terror of these invaluable technological allies. 

December 21, 2007
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