BEST LAW MONAY CAN BUY -- The WE Brad talks about is EFF. (I am a Trustee of EFF and agree with Brad) djf

[David Farber <dave () farber net>]

________________________________________
From: Brad Templeton [btm () templetons com]
Sent: Wednesday, February 13, 2008 9:28 PM
To: Jon Urdan
Cc: 'lynn'; plevy () citizen org; David Farber; 'Patrick W. Gilmore'; 'Brad Templeton'; 'Lee Tien'
Subject: Re: [IP] Re:   BEST LAW MONAY CAN BUY --  Senate votes Telecom      immunity

On Wed, Feb 13, 2008 at 01:47:25PM -0800, Jon Urdan wrote:
> I'm not sure why the 'outrage' of 'everyone you know' is focused on the
> telco's rather than the NSA or other agencies involved in ordering the
> program, analyzing the data, and acting on the findings.  The telcos thought

It isn't.   There are other cases directly contesting the actions of
the NSA and White House.   However, as was learned in the 70s when
these laws were passed, it is not enough to hold executive branch
officials culpable for violations of the law.  Congress wrote a law
to also make the phone companies who assist them libable.   It is
certainly appropriate -- presuming you agree with our opinion on the
merits and legality of this program -- to pursue both avenues of
redress.

> they were cooperating with a legally authorized operation.  Do you believe
> they knowingly broke the law or didn't bother to consult their legal staff
> or challenge the government request?  As for Qwest, it's possible that they
> did the right thing just on principle.  However, I think they were being

We can't speak to their state of mind.  However, whether it was illegal
is exactly what the courts are being asked to judge.  It is this which
the Senate wants to stop the courts from deciding.

The telcos had the opportunity and in fact the _duty_, when presented with
orders of debatable legality to say, "listen, it's all very nice that
you tell us this is legal, but we would like a judge to approve these
orders."  They did not, so now we're asking a judge.  That's how
the system works.  That Qwest balked is more than enough to tell us
the legality was debatable.

> no operational changes.  Similarly, I think the current lawsuits are an
> unfair burden on the telcos.  I realize the IP list is not an unbiased

And so you might propose changing the law into the future.  But retroactive
change as well?  It undermines the entire concept of rule of law.

> sample, but there are a lot of tech people on this list, let's see if any
> corporate people think the 40 lawsuits are a reasonable response.

There are so many lawsuits because there are so many telcos and so many
parties who we have evidence were subjected to unlawful surveillance.
They have largely been consolidated, which is how the law deals with
this question, so yes, it's reasonable.
> Last, although there were several responses to my post, no one answered my
> question: 'Does anyone expect material monetary damages would ultimately
> make it to injured parties as a result of these lawsuits?'  If the lawsuits
> aren't for the injured parties, what is the purpose and why does it have to
> involve the telcos (vs a legislative or oversight solution)?

We hope they some will.   The total statutory damages however exceed the
assets of the phone companies -- a good reason they should have been more
cautious -- so it's hard to speculate on what could happen.   However, we
are using class action for a different purpose.  This is the 2nd or 3rd
time in our 17 year history for us to do so, though we have brought
many actions against the government and corporate rights violators.
The extensive damages of this law will send the message we want sent.
Don't do this.  Follow the law.  Be scared to death the next time you
are asked to do this.

Without the threat of major damages, we could not send this message.

And if you think we started this (we were the first suit) for the money,
you don't know us, or our history, or our lawyers, or how much less
they are paid than lawyers in the corporate world, especially ones of
their calibre.   It's an insinuation you should research with more
care before bringing it.   If you knew the people involved you wouldn't
even think it for a moment.

> I don't agree that there is a contradiction here.  The vote was 70-30, which
> in these highly polarized times is a pretty strong majority (i.e., my point
> that the public through their representatives, wants the immunity), but
> still leaves 30% for interest groups to target their fundraising appeals.

The public, from what we've seen in polls, most certainly does not.
Various senators have decided to vote against the views of their
constituents, which they may of course do.

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