Only preventing fees?

[David Farber <dave () farber net>]

________________________________________
From: James S. Tyre [jstyre () eff org]
Sent: Wednesday, February 13, 2008 2:09 PM
To: Kevin Bankston; Brad Templeton
Cc: eff-priv () eff org; David Farber
Subject: Re: [E-PRV] Only preventing fees?

(Adding in Dave Farber as I just noticed that one of his readers made
the same completely false and boneheaded statement about immunity v. fees.)

At 10:33 AM 2/13/2008 -0800, Kevin Bankston wrote:

> On Feb 13, 2008, at 10:22 AM, Brad Templeton wrote:
>
> > Ok, so now two differnt people have written that this senate bill does
> > not provide immunity, but does block class action fees.   Of course if
> > that were true we would continue with our case as before.
>
> Hi Brad--Who has written that?  It is completely false.  Put somewhat
> simplistically (so don't quote me), the Senate Bill allows the AG to
> obtain dismissal of all claims against communications providers based
> on his secret certification to the court that the alleged conduct was
> authorized by the President between Sep 01 and Jan 07 for the purpose
> of anti-terrorism and had been determined to be legal (or,
> alternatively, that the alleged conduct didn't occur).


Exact text:

SEC. 202. LIMITATIONS ON CIVIL ACTIONS FOR ELECTRONIC COMMUNICATION
SERVICE PROVIDERS.

       (a) Limitations-

             (1) IN GENERAL- 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.

             (2) REVIEW- A certification made pursuant to paragraph
(1) shall be subject to review by a court for abuse of discretion.

       (b) Review of Certifications- If the Attorney General files a
declaration under section 1746 of title 28, United States Code, that
disclosure of a certification made pursuant to subsection (a) would
harm the national security of the United States, the court shall--

             (1) review such certification in camera and ex parte; and

             (2) limit any public disclosure concerning such
certification, including any public order following such an ex parte
review, to a statement that the conditions of subsection (a) have
been met, without disclosing the subparagraph of subsection (a)(1)
that is the basis for the certification.

       (c) Nondelegation- The authority and duties of the Attorney
General under this section shall be performed by the Attorney General
(or Acting Attorney General) or a designee in a position not lower
than the Deputy Attorney General.

       (d) Civil Actions in State Court- A covered civil action that
is brought in a State court shall be deemed to arise under the
Constitution and laws of the United States and shall be removable
under section 1441 of title 28, United States Code.

       (e) Rule of Construction- Nothing in this section may be
construed to limit any otherwise available immunity, privilege, or
defense under any other provision of law.

       (f) Effective Date and Application- This section shall apply
to any covered civil action that is pending on or filed after the
date of enactment of this Act.



> > Is this referring to the proposal we talked about which would limit
> > damages only to individuals who specifically were targetted by the
> > program
> > and give immunity for snooping on people caught in the dragnet?
>
> I'm afraid I don't recall any such proposal--it's not one that we
> would make, considering our class members were likely not
> specifically targeted--but regardless, the answer is no.


--------------------------------------------------------------------
James S. Tyre                                      jstyre () jstyre com
Law Offices of James S. Tyre          310-839-4114/310-839-4602(fax)
10736 Jefferson Blvd., #512               Culver City, CA 90230-4969
Co-founder, The Censorware Project             http://censorware.net
Policy Fellow, Electronic Frontier Foundation     http://www.eff.org


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