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> [The class action lawsuit against AT&T] was dismissed on December 29, 2011 based on a retroactive grant of immunity by Congress for telecommunications compani

> [The class action lawsuit against AT&T] was dismissed on December 29, 2011 based on a retroactive grant of immunity by Congress for telecommunications companies that cooperated with the government. What an overreach of power on the part of Congress. Something goes to court to discuss its legality, and then Congress retroactively declares it to be legal? Yikes.

rdtsc 13y ago
I already mentioned this and sorry for repeating but our beloved liberal / transparent / change-and-hope-loving president Obama voted for the retroactive immunity back when he was still a senator.
anigbrowl 13y ago
Well no: Congress is well capable of granting retroactive immunity. The constitution restrains it from retroactively criminalizing things, so that you can be prosecuted for something that wasn't illegal when you did it; but retroactive decriminalization happens fairly frequently and is an essentially liberal action. Why should a private actor be burdened for the perceived misdoings of government? It's not up to corporations or individuals to regulate the government, from a legal standpoint.
- mtgx 13y ago
  But the government can still be sued over it, right? At least if they don't request sovereign immunity...
  - anigbrowl 13y ago
    Sure, but it would be a bit of an uphill struggle. You'd need to show standing for starters, which is quite difficult in the wake of Twombly and Iqbal (two recent and important cases address this key aspect of civil procedure, which I don't feel up to explaining). Bear in mind that the judiciary does not want to be in the business of micro-managing the executive branch, both because it jeopardizes its independence and because its rulings would almost certainly be circumvented on a technicality, thus weakening its actual reach. Among other factors, this is why the courts often decline to hear matters that are political questions (that is to say, questions of policy) and invites plaintiffs to work through Congress instead. EDIT: well, political derives from polity rather than policy, but given the context, I hope my meaning is clear. this is not to say it might not be worth filing a lawsuit to draw attention to the issue or to put the Executive branch on record as to what its position is; often change does result from some gestural litigation. But you want to be careful to separate the issue you care about (mass surveillance in the age of technology) from the long and bumpy road of legal procedure; it would be a mistake to express one's understandable frustration with the latter as a malign consequence of the former.
- weland 13y ago
  > Why should a private actor be burdened for the perceived misdoings of government? But why does this have to be ensured through the action of the Congress? If the misdoing was the Government's, it is up to the courts of law to absolve the private actor of guilt. Granting immunity of private actors for government illegalities is a very dangerous precedent. Imagine if the same was to be done if a private security company fires on civilians on behalf of state orders, and is then absolved of responsibility through an act like this one. When a private authority does something on behalf of state authority, the state effectively gives away some of its responsibility; when it decriminalizes it later, the part of responsibility that it has given away is now vanished. In some cases, of course, the state can still be sued over the initiative, but such a measure ensures that companies are sheltered in case the whole thing goes awry, so there's little incentive in not collaborating. What does suck about this in terms of ethics is that it's hard to draw a line between when retroactive decriminalization is beneficial and when it isn't. After abolishing slavery, it obviously makes sense to decriminalize slaves' attempted escapes. But does it also make sense to decriminalize racist behaviour? Edit: just to be sure, I'm arguing over principles here, and all I have to bring is historical arguments, not judiciary ones, since I neither am a lawyer, nor do I reside in the US. If I missed something due to unfamiliarity with the US law, I apologize in advance :-).
  - anigbrowl 13y ago
    Well, the things you mention do happen; that's been a long-standing problem with hiring mercenaries throughout history. I should have made it clearer that I'm looking at this from a strictly legal perspective, insofar as I don't think Congress is actually overreaching under the US Constitution. On general principle, I agree with you that it's far too easy for government to employ private entities as a cat's paw, but those kinds of compromises are unfortunately a common side-effect of war.
  - DigitalJack 13y ago
    "But why does this have to be ensured through the action of the Congress? If the misdoing was the Government's, it is up to the courts of law to absolve the private actor of guilt." Courts don't absolve anyone of guilt. They merely determine if a law has been broken. It is congress that makes law, so it is up to congress to construe the law such that the private actor has not broken anything.
notdrunkatall 13y ago
Retroactive immunity should itself be illegal, no exceptions.

rdtsc 13y ago

I already mentioned this and sorry for repeating but our beloved liberal / transparent / change-and-hope-loving president Obama voted for the retroactive immunity back when he was still a senator.

anigbrowl 13y ago

Well no: Congress is well capable of granting retroactive immunity. The constitution restrains it from retroactively criminalizing things, so that you can be prosecuted for something that wasn't illegal when you did it; but retroactive decriminalization happens fairly frequently and is an essentially liberal action. Why should a private actor be burdened for the perceived misdoings of government? It's not up to corporations or individuals to regulate the government, from a legal standpoint.

mtgx 13y ago
But the government can still be sued over it, right? At least if they don't request sovereign immunity...
- anigbrowl 13y ago
  Sure, but it would be a bit of an uphill struggle. You'd need to show standing for starters, which is quite difficult in the wake of Twombly and Iqbal (two recent and important cases address this key aspect of civil procedure, which I don't feel up to explaining). Bear in mind that the judiciary does not want to be in the business of micro-managing the executive branch, both because it jeopardizes its independence and because its rulings would almost certainly be circumvented on a technicality, thus weakening its actual reach. Among other factors, this is why the courts often decline to hear matters that are political questions (that is to say, questions of policy) and invites plaintiffs to work through Congress instead. EDIT: well, political derives from polity rather than policy, but given the context, I hope my meaning is clear. this is not to say it might not be worth filing a lawsuit to draw attention to the issue or to put the Executive branch on record as to what its position is; often change does result from some gestural litigation. But you want to be careful to separate the issue you care about (mass surveillance in the age of technology) from the long and bumpy road of legal procedure; it would be a mistake to express one's understandable frustration with the latter as a malign consequence of the former.
weland 13y ago
> Why should a private actor be burdened for the perceived misdoings of government? But why does this have to be ensured through the action of the Congress? If the misdoing was the Government's, it is up to the courts of law to absolve the private actor of guilt. Granting immunity of private actors for government illegalities is a very dangerous precedent. Imagine if the same was to be done if a private security company fires on civilians on behalf of state orders, and is then absolved of responsibility through an act like this one. When a private authority does something on behalf of state authority, the state effectively gives away some of its responsibility; when it decriminalizes it later, the part of responsibility that it has given away is now vanished. In some cases, of course, the state can still be sued over the initiative, but such a measure ensures that companies are sheltered in case the whole thing goes awry, so there's little incentive in not collaborating. What does suck about this in terms of ethics is that it's hard to draw a line between when retroactive decriminalization is beneficial and when it isn't. After abolishing slavery, it obviously makes sense to decriminalize slaves' attempted escapes. But does it also make sense to decriminalize racist behaviour? Edit: just to be sure, I'm arguing over principles here, and all I have to bring is historical arguments, not judiciary ones, since I neither am a lawyer, nor do I reside in the US. If I missed something due to unfamiliarity with the US law, I apologize in advance :-).
- anigbrowl 13y ago
  Well, the things you mention do happen; that's been a long-standing problem with hiring mercenaries throughout history. I should have made it clearer that I'm looking at this from a strictly legal perspective, insofar as I don't think Congress is actually overreaching under the US Constitution. On general principle, I agree with you that it's far too easy for government to employ private entities as a cat's paw, but those kinds of compromises are unfortunately a common side-effect of war.
- DigitalJack 13y ago
  "But why does this have to be ensured through the action of the Congress? If the misdoing was the Government's, it is up to the courts of law to absolve the private actor of guilt." Courts don't absolve anyone of guilt. They merely determine if a law has been broken. It is congress that makes law, so it is up to congress to construe the law such that the private actor has not broken anything.

notdrunkatall 13y ago

Retroactive immunity should itself be illegal, no exceptions.