Wednesday, October 17, 2007

How Telco's Can Get Off the Hook

Jane Harman has been very anxious to get the telecommunications companies off the hook for all of its illegal activity.  Rather than get on her case for it again, tonight I'd like to take a different tack and present a legitimate scenario in which the Verizons and AT&T's can get out of being held liable - well, a least partially.  If a telco voluntarily turned over customer records - our phone calls and emails - just because the government made claims - sans warrant - that it was vital for national security (or some other grave-sounding reason), then they are necessarily fully at fault.  They should have known (and I dare say would have known) that they were breaking the law.  And courtesy of Glenn Greenwald (damn that guy's great), we know that the court had already rejected AT&T's argument that it acted in "good faith".

However, what if they weren't breaking the law without getting their arms twisted by the government?  Sure, they knew what they did was illegal, but what if the government used its power to compel them to break the law.  As we've seen with with Qwest, there was a large contract for $100 million that the government may have been holding out in front of the telco's to get them to play ball.  See Kagro X's recent post for the skinny on this.  It's clearly not far-fetched to think that extortion, threats of retribution for non-cooperation, and other types of coercion were placed on the telco's.  It's quite possible that these telco's weren't willing lawbreakers. 

Perhaps these telcos were more the victims than the perpetrators.  It's possible.  And to the extent they were, their level of liability for their breaking the law should go down -- the worse the coercion, the less the liabiity.

However, their liability should not be reduced at all unless they can show the government did engage in such illegal coercion and we get punishment applied to those lawbreakers.

If that happened, then it would be reasonable to reduce the liability of these corporations. 

But not until then.

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