Much to my surprise, and indeed the surprise of everyone I know, the FISA bill that came out of the Judiciary comittee does not have telecom immunity. From Wired:

Civil liberties groups got a stunningly unexpected win Thursday as the Senate Judiciary panel passed their version of the new government spying bill out of committee without including a provision giving immunity to telecoms being sued for helping the government secretly spy on Americans.

The biggest winner from the development is the Electronic Frontier Foundation, whose suit against AT&T in federal court would almost certainly have been wiped out by the immunity provision.

The provision - which was part of the version passed by the Senate Intelligence committee in mid-October - was widely expected to make it into the bill, due to the administration's full court press on the issue, the telcos small army of lobbyists and the vocal support of California Democrat Dianne Feintstein. Feinstein's vote was expected to reverse the Dems 10-9 advantage in the committee.

I wonder if the pressure is beginning to get to Feinstein? In any case, good news. The bill is still an awful violation of civil liberties, and probably unconstitutional (4th amendment, we hardly knew thee) because it doesn't require individual warrants, but this is still a significant victory for accountability.

This article from Bad Attitudes makes the point:

See this article by former Attorney General John Ashcroft? He's defending immunity for the telephone companies who turned over wiretap information without warrants in reliance on the government's say-so that it was legal. Ashcroft argues that:

Longstanding principles of law hold that an American corporation is entitled to rely on assurances of legality from officials responsible for government activities. The public officials in question might be right or wrong about the advisability or legality of what they are doing, but it is their responsibility, not the company's, to deal with the consequences if they are wrong.

Small problem: he's wrong on the law. Companies that deal with the government in fact are not entitled to rely on promises made by government officials, and it is common for companies to lose major legal cases despite the fact that they relied on what they believed to be valid advice from government officials.

What Ashcroft wrote probably sounds like a reasonable rule to the average person: it's not fair for a company to be penalized for doing something the government told it to do. The real rule, at least as reasonable as Ashcroft's, is exactly the opposite. That rule is described, elaborated, and relied on in hundreds of cases, mostly government contract cases. Contrary to Ashcroft's teaching, the rule is that businesses who deal with the government are not entitled to rely on a government official's promises that their behavior is legal. A government official cannot make an act legal simply by erroneously telling a citizen the act is okay. The problem that these cases address is that government officials are human, and can make mistakes in interpreting laws. Or, officials can even be corrupt, or otherwise purposefully misinterpret the laws. A mistaken or corrupt government official does not have the power to make an illegal act legal.

A company that deals with the government is required to make its own, independent analysis of whether or not the actions proposed by the government are legal, and where a government official gave wrong legal advice, the company can lose the lawsuit.

There are hundreds if not thousands of these cases out there. (More, including an example, at the link).

Or, to put it more crudely, the Telecom companies are relying on the "just obeying orders" defense. It didn't cut it for Germans hung at Nuremburg and it doesn't cut it for illegal spying in violating of the fourth amendment. Just because some government official tells you its ok doesn't make it so. The idea that it should is the very essence of despotism, whether kingly, dictatorial or totalitarian. It's also one of the lowest forms of morality in a child's moral development -- the "It's right because mommy/daddy/teacher told me to do it". Growing up entails realizing that Daddy isn't always right. A country in which the rule of law is primary is one in which "the government said so" doesn't make things legal.

Even if it's the President Daddy.

Time to stop regressing to childhood and grow up. Time for the Telecoms to take responsibility like adults for their own decision to break the law.