Re: BEST LAW MONAY CAN BUY -- Senate votes Telecom immunity

[David Farber <dave () farber net>]

Begin forwarded message:

From: Lee Tien <tien () eff org>
Date: February 13, 2008 3:03:49 PM EST
To: dave () farber net
Cc: Jon Urdan <jon () lambeaucap com>, Brad Templeton  
<4brad () templetons com>
Subject: [IP] Re:   BEST LAW MONAY CAN BUY --  Senate votes Telecom  
immunity

Dave,

I'm mystified by Jon Urdan's comment that the retroactivity immunity  
provision of the Senate bill "merely prevents public interest and  
class-action lawyers from pursuing legal fees."  As you'll see below,  
it tries to create a short-cut to dismissing the cases entirely.

It's set up so that the AG need only give the court a piece of paper  
saying:
-- the activity involved fighting terrorism between 9/11 and 1/17/07
-- the exec branch gave the telco a piece of paper saying that the  
President authorized the activity and it was "determined to be lawful."

Here's the text of the provision (Sec. 202(a)(1)):

"Notwithstanding any other provision of law, a covered civil action  
shall not lie or be maintained in a Federal or State court, and shall  
be promptly dismissed, if the Attorney General certifies to the court  
that-
(A) the assistance alleged to have been provided by the electronic  
communication service provider was-
(i) in connection with an intelligence activity involving  
communications that was-
(I) authorized by the President during the period beginning on  
September 11, 2001, and ending on January 17, 2007; and
(II) designed to detect or prevent a terrorist attack, or activities  
in preparation for a terrorist attack, against the United States; and
(ii) described in a written request or directive from the Attorney  
General or the head of an element of the intelligence community (or  
the deputy of such person) to the electronic communication service  
provider indicating that the activity was-
(I) authorized by the President; and
(II) determined to be lawful; or
(B) the electronic communication service provider did not provide the  
alleged assistance."

The court may only review the AG certification "for abuse of  
discretion."  Sec. 202(a)(2).  Whatever that means.

Lee.

PS  We should all remember that there's a similar prospective immunity  
provision (Sec 203) with the same kind of procedure.

-------------------------------------------
Archives: http://www.listbox.com/member/archive/247/=now
RSS Feed: http://www.listbox.com/member/archive/rss/247/
Powered by Listbox: http://www.listbox.com