Re: I'd favor indemnifying the telcos... in

said by amigo_boy

But, that's just me. As you said, it's their right.

Mark
[/BQUOTE :

So, too, in this case. These defendants (some 30+ of them, as I understand it) have brought cases that are on their face in accordance with torte law.

So long as they have standing, and can make a prima facie case that it is at least possible they suffered damages, the cases should go forward, whether you like it or not. That, again, is *the law*.]]> http://www.dslreports.com/forum/remark,19647694 Tue, 18 Dec 2007 21:20:50 EDT Re: I'd favor indemnifying the telcos... http://www.dslreports.com/forum/remark,19647641 huntml :

said by amigo_boy :
You need a girlfriend.

My wife of twenty-one years would *probably* beg to differ with you.

quote:
There's a presumption that Congress is aware of what "[the administration] were doing" and the amendments reflect Congress's good-faith effort to ameliorate the potential for shortcomings while filling the "dire hole" you admitted needed to be fixed. (Balance of powers, and all.)

You're assuming that the amendments have no relation to what happened. Or, that you can't trust Congress acted appropriately. That's the way representative democracy works. If you don't like it, run for office. That would be more in line with the Constitutional intent than sinking to civil court for monetary damages.

Maybe you are right, maybe not. As I mentioned, there are many cases in American law, in environmental law, labor law, etc., where civil actions brought against the executive branch, by citizens with standing and grievance, have led to injunctions forcing the executive to do the right thing, even, no especially, in cases where it flouted legislative will, knowing that the legislature was too fractured/ununified to cite it for contempt.

To me, this looks like just such a case.]]> http://www.dslreports.com/forum/remark,19647641 Tue, 18 Dec 2007 21:13:54 EDT Re: I'd favor indemnifying the telcos... http://www.dslreports.com/forum/remark,19647587 huntml :

said by amigo_boy

:

They pursued criminal court first? How would you feel about the police punishing illicit drug makers in civil court, foregoing criminal court, just because it's easier? The Goldman's didn't do that, did they?

The matter is quite a different one, as demonstrated by this adminstration's announcement that they *will not allow the DOJ to execute criminal contempt citations* issued by Congress in the Firingate investigation.

This administration, clearly, has no interest in allowing any oversight over its actions, even oversight that is provided for in the Constitution. So yes, let these cases go forward and let us see what comes of them.

What are you afraid of?

Like the Goldmans having their day in criminal court. Or, the police trying illicit drug makers in criminal court.

So you would have to hold, in order to be consistent, then, that since the state tried a criminal case against O.J. and it failed, the civil cases should not have been brought forward, wouldn't you?

Look, like I said, the ability to take people to civil court in torte actions, in response to alleged damages, is a fundamental part of American jurisprudence, predating even the Constitution, going back into English common law. And like I said, if these people don't have cases or standing, the cases will be tossed. This, too, as I said, is the way the *law works in this country.*

*You* are the one who wants to deny these people their day in court without even a hearing to determine merit or standing, which is completely antithetical to American judispredential history.]]> http://www.dslreports.com/forum/remark,19647587 Tue, 18 Dec 2007 21:04:36 EDT Re: I'd favor indemnifying the telcos... http://www.dslreports.com/forum/remark,19647459 amigo_boy :

said by huntml

:

We don't know that the amendments to FISA serve to retroactively legalize what the admin. was doing, because *we don't know what they were doing*.

You need a girlfriend. There's a presumption that Congress is aware of what "[the administration] were doing" and the amendments reflect Congress's good-faith effort to ameliorate the potential for shortcomings while filling the "dire hole" you admitted needed to be fixed. (Balance of powers, and all.).

You're assuming that the amendments have no relation to what happened. Or, that you can't trust Congress acted appropriately. That's the way representative democracy works. If you don't like it, run for office. That would be more in line with the Constitutional intent than sinking to civil court for monetary damages.

Mark]]> http://www.dslreports.com/forum/remark,19647459 Tue, 18 Dec 2007 20:44:27 EDT Re: I'd favor indemnifying the telcos... http://www.dslreports.com/forum/remark,19647258 amigo_boy :

said by KrK

:

The public can't bring criminal charges or launch investigations--- only the Government can... So if the Government is not interested in investigating itself, or prosecuting, then the ONLY choice citizens have IS to file a civil lawsuit.

The public can bring suit against the government. Has that happened? Also, how easy does it have to be to follow the natural course of investigating and trying criminal actions? At what level do you throw in the towel and resort to the lower standards of civil court?

That's what seems unseemly to me. It reminds me of when Clinton Whitewater investigators couldn't come up with any dirt, and unwittingly struck the lottery with a personal shortcoming. Jackpot. They had what they wanted. Something to give the President a black eye with. It didn't matter if it was the right thing to do, or served any purpose, or helped the country, or repaired anyone who'd been wronged. It was just politics at that point.

What's happening now smells a lot the same to me. Rationalize it any way you want. It's legal. It's too hard to do the right way. You're really just getting your licks in any way you can.

Mark

Mark]]> http://www.dslreports.com/forum/remark,19647258 Tue, 18 Dec 2007 20:09:33 EDT Re: I'd favor indemnifying the telcos... http://www.dslreports.com/forum/remark,19647039 huntml : We don't know that the amendments to FISA serve to retroactively legalize what the admin. was doing, because *we don't know what they were doing*. That's why we need to have *some* mechanism to examine what they were doing._At this point, with this bitch-ass Congress, it looks like civil trials against the telcos are the only way to shine light on the matter.]]> http://www.dslreports.com/forum/remark,19647039 Tue, 18 Dec 2007 19:42:38 EDT Re: I'd favor indemnifying the telcos... http://www.dslreports.com/forum/remark,19647004 amigo_boy :

said by huntml

:

OJ was acquitted in criminal court. The Goldmans won a judgment against him in civil court.

My point was that they sought criminal justice first. They didn't say "aw shucks, this will be too haaaaaard. Let's do civil court" instead.

On a personal note, I wasn't too impressed with the notion of the Goldmans going to civil court to get what they couldn't in criminal court. (I didn't agree with the criminal court judgment. But, it seemed slimy to basically retry him in civil court with lower standards.). It doesn't seem like it's done the Goldmans a lot of good. They seem to be obsessed with revenge. At some point it seems like you have to live with the outcome of the criminal trial and move on.

But, that's just me. As you said, it's their right.

Mark]]> http://www.dslreports.com/forum/remark,19647004 Tue, 18 Dec 2007 19:37:55 EDT Re: I'd favor indemnifying the telcos... http://www.dslreports.com/forum/remark,19646978 KrK : The public can't bring criminal charges or launch investigations--- only the Government can... So if the Government is not interested in investigating itself, or prosecuting, then the ONLY choice citizens have IS to file a civil lawsuit.

It's not wrong. It's the RIGHT course of action!
--
"Regulatory capitalism is when companies invest in lawyers, lobbyists, and politicians, instead of plant, people, and customer service." - former FCC Chairman William Kennard (A real FCC Chairman, unlike the current Corporate Spokesperson in the job!)]]> http://www.dslreports.com/forum/remark,19646978 Tue, 18 Dec 2007 19:33:55 EDT Re: I'd favor indemnifying the telcos... http://www.dslreports.com/forum/remark,19646696 huntml : OJ was acquitted in criminal court. The Goldmans won a judgment against him in civil court.]]> http://www.dslreports.com/forum/remark,19646696 Tue, 18 Dec 2007 18:46:39 EDT Re: I'd favor indemnifying the telcos... http://www.dslreports.com/forum/remark,19645896 amigo_boy :

said by huntml

:

How did you feel about the Brown/Goldstein estates' bringing of a civil suit against O.J. Simpson? Was that a demonstration of contempt for the law?

They pursued criminal court first? How would you feel about the police punishing illicit drug makers in civil court, foregoing criminal court, just because it's easier? The Goldman's didn't do that, did they?

said by huntml

:

I agree with you that Congressional hearings would be a better way to handle this inquiry,

I said "natural" way. Like the Goldmans having their day in criminal court. Or, the police trying illicit drug makers in criminal court.

said by huntml

:

The fact that the Congress doesn't have the stones to stand up to this administration

The big assumption here is that Congress needs to stand up to this administration. The natural reading of current events is that a majority don't believe it rises to that level. And, their actions to amend FISA to provide for what has been happening tends to prove it (in the same way the 13th Amendment and Lend-Lease Act paved over previous "indiscretions.").

Mark]]> http://www.dslreports.com/forum/remark,19645896 Tue, 18 Dec 2007 16:28:02 EDT Re: I'd favor indemnifying the telcos... http://www.dslreports.com/forum/remark,19645757 amigo_boy :

said by huntml

:

I absolutely agree with you, Mark, that this approach of going at the telcos in civil court is, well, bullshit. I *wish* that Congress had the balls to really look into this.

Thanks. I'm glad to know we agree on something. That's always a start. I also think it's good to realize both sides have good intentions (nobody's intentionally trying to subvert the nation).

It sounds to me like Congress did look into it and has amended the law to legalize it, with more controls. Why is that not good enough? (Re, my other post about previous expedient actions in this country that were excused when made legal).

said by huntml

:

So, let's just see where this all goes, shall we?

I'll wager money that the telcos get immunity. It will be packaged into omnibus legislation and politicians will have an "out" by saying there were too many good things that needed passage. "We'll have to go back and fix that one, (wink, wink, nudge, nudge, say no more...)." Or, they'll let FISA come close to sunsetting, and preserving it will be the expedient excuse for accepting immunity ("but, we'll have to go back and fix that...").

And there's always Presidential immunity. If Bill Clinton can pardon a bunch of convicted drug dealers, I'm sure President Bush can swing something for the telcos. It won't be hard for the federal courts to find that it applies to civil matters (when those taking the civil route are doing so because they can't get the criminal route to work for them).

To me, it's a given. They (even the politicians ostensibly opposed to it) are just looking for a way to pass it. It's going to be like how the Brady Bill passed (Bob Dole on the floor passing it by himself after all the Senators went on holiday recess).

Mark]]> http://www.dslreports.com/forum/remark,19645757 Tue, 18 Dec 2007 16:10:06 EDT Re: I'd favor indemnifying the telcos... http://www.dslreports.com/forum/remark,19645651 huntml :

said by amigo_boy :

This would be like the police using civil court to get DUI convictions because "it's easier." If that was happening you guys would be having an absolute fit because it violates your perception of the "rule of law."

I absolutely agree with you, Mark, that this approach of going at the telcos in civil court is, well, bullshit. I *wish* that Congress had the balls to really look into this.

But! It is *legal*, and it looks like the only way we have at the moment to (1) find out what they really are/were doing and (2) *begin* the process of bringing anyone who violated law to account (because I firmly believe there are smoking guns that might be uncovered during that trial, else, it's hard to understand why the administration is so determined to prevent them).

So, let's just see where this all goes, shall we? ]]> http://www.dslreports.com/forum/remark,19645651 Tue, 18 Dec 2007 15:54:16 EDT Re: I'd favor indemnifying the telcos... http://www.dslreports.com/forum/remark,19645588 amigo_boy :

said by huntml

:

We live in a nation of laws first, men (and the supersecret spy organizations they work for) second.

The primacy of the rule of law is probably the most important principle of our system of government. What they are doing undermines the rule of law, and is a very, very bad precedent for this country.

I chuckle every time I read this. This nation of laws provides most naturally for Congressional investigation, impeachment hearings and lengthy prison sentences for administration members who violated the law.

If you can't rise to that level of the system, it's childish to resort to civil court and preach about "a nation of laws." This would be like the police using civil court to get DUI convictions because "it's easier." If that was happening you guys would be having an absolute fit because it violates your perception of the "rule of law."

Mark]]> http://www.dslreports.com/forum/remark,19645588 Tue, 18 Dec 2007 15:46:33 EDT Re: I'd favor indemnifying the telcos... http://www.dslreports.com/forum/remark,19645555 huntml :

said by amigo_boy :
There's no coherent strategy behind the goal of attacking telcos civilly. I think everyone can agree that it's a ham-handed way of doing what there isn't political will to do in the natural and constitutional way.

To me, that wreaks as badly as what the President and telcos are accused of doing. It seems to show the same contempt for law.

How did you feel about the Brown/Goldman estates' bringing of a civil suit against O.J. Simpson? Was that a demonstration of contempt for the law?

The fact is that we have civil courts, and people are free to bring suits in them.

If the suits are without merit because there is no showing of potential for damages by the defendants named in the suit, or are being brought by people without standing, they will be summarily discharged.

That is the law.

You talk about the bringing of such suits being a showing of contempt for the law; but the ability for people to bring such suits *is* the law, clearly, so you are wrong.

Period.

It *is* the law.

I agree with you that Congressional hearings would be a better way to handle this inquiry, but...it is what it is. The fact that the Congress doesn't have the stones to stand up to this administration does not mean that individuals who believe they have viable civil cases against the telcos should be peremptorily shut off from bringing such cases before any adjudication as to their validity is undertaken.

You want to prevent people from exercising their right to their day in court, and you speak of *contempt for the law* in the same breath?

To quote something we African Americans say to each other in such situations, 'ni**a please.']]> http://www.dslreports.com/forum/remark,19645555 Tue, 18 Dec 2007 15:41:44 EDT Re: I'd favor indemnifying the telcos... http://www.dslreports.com/forum/remark,19645450 amigo_boy :

said by huntml

:

Let's have a trial with witnesses and discovery so we can all know what they actually *were* doing. If they really did act in good faith with the government, let the government indemnify them for any damages, but let's still have the trials.

That doesn't make sense to me. What you're describing is a Congressional investigation, not civil claims of damages. If the the politicians who are capable of calling for an investigation (and impeachment hearings) aren't willing to do that, they're not going to let it go to civil court and indemnify the telcos. I.e., if they were going to do that they'd just have congressional hearings and have more control over it.

I guess I'm hearing a lot of different premises for civil action against the telcos.

1) The telcos broke their contract with their customers.
- But, only their customers have standing to make this claim of damages (and how, exactly, would they prove they were damaged? How did they suffer monetarily?).
2) The telcos broke an unwritten contract with everyone because they provide backbone services to everyone.
- But, I doubt anyone would have standing to make this claim. And, unlike signing on to a contract (which grants you certain expectations), nobody has an expectation of privacy on the Internet unless they use SSL, SSH, external encryption, etc. Those people who did weren't damaged. Those who didn't had no expectation of privacy (being equivalent to leaving your car keys in the ignition and then complaining your car was stolen).
3) Sue for injunction from further cooperation.
4) Sue for money to drive up their costs, drive customers away (who apparently wouldn't leave over this issue alone).
5) Sue just to get the facts on the table.

There's no coherent strategy behind the goal of attacking telcos civilly. I think everyone can agree that it's a ham-handed way of doing what there isn't political will to do in the natural and constitutional way.

To me, that wreaks as badly as what the President and telcos are accused of doing. It seems to show the same contempt for law.

Mark]]> http://www.dslreports.com/forum/remark,19645450 Tue, 18 Dec 2007 15:26:11 EDT Re: I'd favor indemnifying the telcos... http://www.dslreports.com/forum/remark,19645167 huntml : Right. The issue of liability is only related to the allegation that the telcos violated their customers' privacy in violation of law.

If they break the law, they'd have no liability, and no need for immunity.

Besides, has anyone heard a telco spokeman publicly ask for immunity? I've only heard the government asking for it. This shows pretty clearly that the concern is more about what might be uncovered were trials to go forward than it is about whether the telcos will be held liable for it.

Besides that, there is a big point everyone is missing in this.

As pointed out by Dodd yesterday, Qwest was the only telco that said, 'no, get a warrant and come back, and we'll give you the data/system access, etc.'

The government did not go to FISA and get a warrant and come back to Qwest.

What are we to make of this? The way I see it, it could mean only one of three things:

1. The government was willing to potentially let some terrorist continue to hatch his international plans and put American lives at risk, rather than deal with the FISA court.

2. The government knew that all the terrorists were either VZ, SBC, or ATT subs, so they didn't need access to Qwest's network.

3. The government knew that the sort of data/telecom traffic access it wanted wasn't something that the FISA court would allow, according to the rules put in place for evaluating such requests (which, as I understand it, are very favorable to the government).

Which do you think is the most likely reason?]]> http://www.dslreports.com/forum/remark,19645167 Tue, 18 Dec 2007 14:40:58 EDT Re: I'd favor indemnifying the telcos... http://www.dslreports.com/forum/remark,19645071 huntml : If you feel there is a case to be made to give the telcos and ISPs indemity for helping out the government, then make it, and get the law passed.

If you think that the government needs to have double-super-secret access to telecom traffic in such a way that there is effectively no oversight over what they are collecting/monitoring and what they are doing with it, as a matter of national security, then make a case for it and get laws passed allowing for it.

But don't make those laws retroactive, so there is no way to find out whether things that were done in the past were legal or not.

Even if I knew what the government was doing with the telcos and agreed that it was necessary, I still would not agree with how they went about it and how they are going about trying to cover it up now.

We live in a nation of laws first, men (and the supersecret spy organizations they work for) second.

The primacy of the rule of law is probably the most important principle of our system of government. What they are doing undermines the rule of law, and is a very, very bad precedent for this country.]]> http://www.dslreports.com/forum/remark,19645071 Tue, 18 Dec 2007 14:21:24 EDT Re: I'd favor indemnifying the telcos... http://www.dslreports.com/forum/remark,19645057 Lazlow : NO, as long as they follow the law these companies will be fine. The problem is that they did NOT follow the law. If they had asked for the proper warrants, then there would be no issue.]]> http://www.dslreports.com/forum/remark,19645057 Tue, 18 Dec 2007 14:19:30 EDT Re: I'd favor indemnifying the telcos... http://www.dslreports.com/forum/remark,19644993 JPL :

said by huntml

:

...but it'll never happen.

The reason? The immunity proposals are less about protecting the telcos' bottom line; that's secondary. What they are really about is quashing the lawsuits so the details of what the administration did/is doing will never_see the light of day.

No, that's not it - it's designed to allow corporations to help out with these types of endeavors. If the companies don't get immunity for something like this, then what chance will there ever be that these companies will ever again help out with a program like this? Almost zero. This is no different than the attempts to get the president's national security advisor to testify before Congress. The nsa isn't a cabinet officer - he/she is a special advisor to the president, and so is outside the jurisdiction of Congressional inquiry. It's absolutely critical that the president get unvarnished information from his advisors, but if an advisor believes that he/she may be called to publicly testify about any such information, they will be less inclined to give truthful assessments to the president.

This is really no different. Open the companies up to prosecution, and the chance that they'll ever willingly assist in matters of national security vanish.]]> http://www.dslreports.com/forum/remark,19644993 Tue, 18 Dec 2007 14:07:41 EDT Re: I'd favor indemnifying the telcos... http://www.dslreports.com/forum/remark,19644931 huntml : Interesting take on this.

Somewhat relatedly, I read an article that talked about how the NSA used to grab a lot of traffic out of the air back when microwave was the dominant long-range transmission method used by telecom, but have lost that capability to an increasing degree as things have transitioned to fiber for long-haul transmission, and have had to increasingly go to the telcos for access. That's probably the impetus behind all these secret deals with telcom, and it's probably been going on for longer than since 9/11, although 9/11 certainly probably accelerated it.

I do not disagree that the government needs to be able to track telecom traffic, and even perhaps data mine it, run it through filters, etc., all the stuff the NSA allegedly is so good at.

What I *do* object to is the administration (1) unilaterally agreeing that the laws we've put in place to do this in a sensible way that allows for oversight (e.g, FISA warrants) no longer work; and (2) trying to cover it all up after people found out about it so that no one will actually know what they were/are doing, and whether it is or is not in accordance with law. I also disagree with blanket immunity for the telcos. Let's have a trial with witnesses and discovery so we can all know what they actually *were* doing. If they really did act in good faith with the government, let the government indemnify them for any damages, but let's still have the trials.]]> http://www.dslreports.com/forum/remark,19644931 Tue, 18 Dec 2007 13:57:49 EDT Re: I'd favor indemnifying the telcos... http://www.dslreports.com/forum/remark,19644619 huntml :

said by footballdude :
Nope, like pretty much everything else in Washington, it's about political posturing. You can be sure that everything you see from either side of the aisle for the next year is geared towards winning votes in the upcoming election.

Well, it *is* politics. It's no surprise that political posturing is a big piece of it.

quote:
Dodd barely mentions the telcos, instead focusing fire on 'this administration'.

And reasonably so, in my view. I am sure that the telcos are lobbying behind the scenes for immunity, but it's only the administration and its congressional allies who are publicly pushing for it.

On the other hand, Dodd didn't spare the telcos completely from criticism. His comments about their having legal departments who were not made up of first-year lawyers and pro bono workers, about Qwest's different stance from the other telcos, etc., were spot-on.

quote:
When this administration is out of office, no one will care anymore about what the telcos did.

I disagree profoundly. I think that part of the reason the telcos have been so quiet in not publicly lobbying for immunity is because they *know* that were they to do so it would have tremendous negative PR consequences.

I believe that this is ultimately going to pass, because the administration desperately wants it, and because Congress is largely bought and paid for, and a bunch of pussies to boot (you'd think that the Dems would've learned from how they rolled over on Iraq and how it's damaged their credibility, but that's another post); but I know that I personally am not going to forget, and I think that a lot of people feel the same way I do. ]]> http://www.dslreports.com/forum/remark,19644619 Tue, 18 Dec 2007 13:08:46 EDT Re: I'd favor indemnifying the telcos... http://www.dslreports.com/forum/remark,19643678 footballdude :

said by huntml

:

The immunity proposals are less about protecting the telcos' bottom line; that's secondary. What they are really about is quashing the lawsuits so the details of what the administration did/is doing will never_see the light of day.

Nope, like pretty much everything else in Washington, it's about political posturing. You can be sure that everything you see from either side of the aisle for the next year is geared towards winning votes in the upcoming election. Dodd barely mentions the telcos, instead focusing fire on 'this administration'. When this administration is out of office, no one will care anymore about what the telcos did.
--
What's certain about Darwinism is that it would take less time for (1) a single-celled organism to evolve into a human being through mutation and natural selection than for (2) Darwinists to admit they have no proof of (1) - Ann Coulter]]> http://www.dslreports.com/forum/remark,19643678 Tue, 18 Dec 2007 10:40:43 EDT Re: I'd favor indemnifying the telcos... http://www.dslreports.com/forum/remark,19643666 amigo_boy :

said by huntml

I think you're right. I also think this is about maintaining historical records so they can be supeonaed in the same way phone records can. In the end either the government will have the power to collect and maintain this history, or a business model will be created which recompenses ISPs (or the larger backbone providers) for doing it. Much the same way companies like Lexus Nexis maintain personal information about us, and the government subscribes to it. The government evades the sticky issue of doing what a private entity can do. And, a private entity does it, essentially with government funding. I think they're looking to establish a similar model if the government (and backbone providers) are prohibited from operating under the current model.

Mark]]> http://www.dslreports.com/forum/remark,19643666 Tue, 18 Dec 2007 10:38:20 EDT I'd favor indemnifying the telcos... http://www.dslreports.com/forum/remark,19643625 huntml : ...but it'll never happen.

The reason? The immunity proposals are less about protecting the telcos' bottom line; that's secondary. What they are really about is quashing the lawsuits so the details of what the administration did/is doing will never_see the light of day.
--
There *are* no answers, only questions; or, rather, every answer begs another question.]]> http://www.dslreports.com/forum/remark,19643625 Tue, 18 Dec 2007 10:32:04 EDT