No Liability for Assisting in Fight Against Terrorism

Trial lawyers have brought lawsuits seeking billions of dollars in damages against telephone companies for assisting federal antiterrorism surveillance programs. In today’s Washington Post, Senator Jay Rockefeller, who is a critic of the Bush Administration, and usually sympathetic to the trial lawyers, explains why this is nevertheless fundamentally unfair to many telecommunications firms and an obstacle to important intelligence gathering.

He advocates giving the telephone companies a limited form of immunity from suit, if they cooperated based on plausible assurances by the Justice Department that the surveillance was legal. Effectively, that would end a legal double standard that discriminates against the telephone companies.

It’s worth noting that the federal officials who created a surveillance program already enjoy “qualified immunity” against having to pay damages, even if a court later declares the program illegal, unless their belief that it was legal was plainly unreasonable. (They can still be ordered by a court to stop operating the program, but they can’t be ordered to pay damages if the defense of qualified immunity applies). But private companies, unlike government officials, do not enjoy such “qualified immunity” against damages, exposing them to potentially huge liabilities and attorneys fees.

That is odd, since the government should be subject to a tougher standard of liability than private companies, not the other way around. After all, under the venerable “state-action” doctrine, it’s generally the government, not private parties, which is bound by the Constitution. And it’s the government that bears principal responsibility for making sure its surveillance programs comply with the Constitution, not private phone companies that are not privy to all the details about, or needs behind, such programs. Indeed, as Senator Rockefeller notes, since “the operational details of the program remain highly classified, the companies are prevented from defending themselves in court.”

But the phone companies and their employees, who acted in good faith, cannot rely on the defense of qualified immunity, since the Supreme Court refused to extend qualified immunity to private parties sued in constitutional lawsuits in its controversial 5-to-4 decision in Richardson v. McKnight (1997). So they face risks of liability even if they simply were trying to help out their country in fighting terrorism. Even if qualified immunity isn’t available to the phone companies, some other form of good faith immunity should be extended to them by the courts or Congress based on the country’s national security needs and the chilling effect of lawsuits on achieving those needs.