An EFF point of view on Does US Constitution SPECIFICALLY PROHBITS the passing of retroactive laws

[David Farber <dave () farber net>]

________________________________________
From: Cindy Cohn [cindy () eff org]
Sent: Monday, February 18, 2008 2:02 PM
To: David Farber
Cc: ip; Peter Swire
Subject: Re: [IP] Re:    Does US Constitution SPECIFICALLY PROHBITS the passing of retroactive laws

Hi Peter (and Dave),

Sorry to sound like a litigator, but there are indeed several
"plausible" arguments that the retroactive immunity provisions are
unconstitutional, contrary to Peter's assertion. There are also
several arguments that the prospective immunity in the bill is
unconstitutional too -- people seem to forget that the bill has both
immunities and in my opinion the second is ultimately more frightening.

EFF certainly will be making those plausible arguments should the
bill pass. There are serious due process and separation of powers
problems with the bill, which effectively grants the Executive the
power to demand that pending court cases come out a particular way
that favors the Executive.  This is an extraordinary thing to do,
especially when the constitutional claims of millions of Americans
are at issue.

While it's not really appropriate for me to lay all of the arguments
out here in this public forum (the government and telcos aren't
showing us their arguments yet either), I think you'll be interested
to see our briefing on the issue, should we have to present it.  I
urge you to keep an open mind until then.

While it would certainly be better for the courts to be allowed to do
their job with Congressional interference at this point, I don't want
Dave's readers to think that if the bill passes, the cases, along
with their privacy and constitutional rights, will simply evaporate.

Also, for those interested in responses to most of the specious
arguments being raised in the immunity fight in DC (I can't say "all"
because it's hard to keep up with all of the misleading things being
thrown around), EFF has a document where we've gathered most of them
together in a little chart:

http://www.eff.org/files/nsa/3keys.pdf

Also, on this page: http://www.eff.org/nsa

you'll find a series of documents about the immunity fight, including
a listing of the laws that the telcos violated and statements from
the whistleblower Mark Klein and expert Brian Reid about what the
suits are exactly about, which has often been missing from the debate
in DC. For instance, one thing that you wouldn't know from the pro-
immunity forces is that the suits aren't about targeted surveillance
of individuals talking to Al Qaeda. The suits against the carriers,
now largely AT&T, Verizon/MCI and Sprint, are about untargeted,
blanket surveillance of ordinary Americans in their domestic
communications and the wholesale handing over of communications
records by the telcos.

Cindy

On Feb 18, 2008, at 4:10 AM, David Farber wrote:

> ________________________________________
> From: Peter Swire [peter () peterswire net]
> Sent: Sunday, February 17, 2008 4:06 PM
> To: David Farber
> Subject: RE: Does US Constitution SPECIFICALLY PROHBITS the passing
> of retroactive laws
>
> Dave:
>
> Sorry to sound like a law professor, but this post was incorrect.
> I think it is bad policy to have retroactive immunity, but I
> haven't seen any plausible argument that such immunity is
> unconstitutional.
>
> 1.  The Constitution does prohibit ex post facto laws.  That means
> that Congress cannot make something *criminal* that was not
> criminal at the time of the action.  So it would be
> unconstitutional if Congress now tried to make it a crime for
> wiretaps that happened earlier.
>
> 2.  Another provision in the Constitution about retroactive laws is
> the Contracts Clause.  That prohibits states from canceling
> contracts that they earlier entered into.  (The Supreme Court has
> held that the Due Process Clause similarly prevent Congress from
> canceling statutes).  So it would be unconstitutional if a state or
> federal government previously promised to pay the telcos, but now
> tried to pass a law that said the payment wasn't due.
>
> 3.  By contrast, Congress and the states have at various times
> changed the liability rules for cases that had not yet gone to
> final judgment.  This has come up, for instance, in the various
> tort reform statutes.  The legislature gets to state what the
> liability (or no liability) rule is, and can change that rule with
> respect to acts that have not been adjudicated yet in the courts.
>
> Peter
>
>
> Prof. Peter P. Swire
> C. William O'Neil Professor of Law
>    Moritz College of Law
>    The Ohio State University
> Senior Fellow, Center for American Progress
> (240) 994-4142, www.peterswire.net
>
>
> -----Original Message-----
> From: David Farber [mailto:dave () farber net]
> Sent: Sunday, February 17, 2008 3:09 PM
> To: ip
> Subject: [IP] Does US Constitution SPECIFICALLY PROHBITS the
> passing of retroactive laws
>
>
> ________________________________________
> From: Gordon Peterson [gep2 () terabites com]
> Sent: Sunday, February 17, 2008 2:34 PM
> To: David Farber
> Subject: Re: [IP] Re:     BEST LAW MONAY CAN BUY --  Senate votes
> Telecom immunity
>
> A recent post I read on the subject pointed out that the US
> Constitution
> SPECIFICALLY PROHBITS the passing of retroactive laws... which means
> that for the pResident to press for, or for Congress to pass, such
> legislation would be a dereliction of their duty and their sworn
> oath of
> office... and thus, in fact, itself (another!) impeachable offense.
>
> --
>
> Gordon Peterson II
> http://personal.terabites.com
> 1977-2007:  Thirty year anniversary of local area networking
>
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********************************************************
Cindy Cohn                              ---- Cindy () eff org
Legal Director                  ---- www.eff.org
Electronic Frontier Foundation
454 Shotwell Street
San Francisco, CA 94110
(415) 436-9333 x108
(415) 436-9993 (fax)



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