Congress gave the phone companies immunity against the billions of dollars in lawsuits brought against them for cooperating with federal antiterror surveillance programs. The ACLU and some trial lawyers argue that this is unconstitutional. But even law professors, like Howard Wasserman, who don’t like the grant of immunity, agree that it is constitutional, as Wasserman explains here. Indeed, the legal arguments against immunity don’t pass the straight face test, although it is conceivable that a mischievous judge who has previously ruled in favor of telecom lawsuits and is angry at Congress for curbing them will pretend to be convinced by them in order to allow such lawsuits to proceed.
Critics of immunity claim it violates separation of powers because it retroactively changes the law. But Congress often retroactively changes the law. It recently passed a law dismissing lawsuits against gunmakers over gun-related crime, and that law was upheld by both the D.C. Court of Appeals and a federal appeals court in New York. Indeed, critics of telecom immunity are themselves big supporters of retroactive laws when those laws benefit trial lawyers at the expense of private property rights. The ACLU, for example, has often supported so-called “civil rights” bills that would make private employers liable for previously-lawful methods of selecting employees, and supported making the 1991 Civil Rights Act retroactive to make employers retroactively liable for emotional distress and punitive damages, and attorneys fees, for conduct that was lawful prior to its passage (the Supreme Court concluded by an 8-to-1 vote that Congress did not intend to make the law fully retroactive, but no justice doubted that Congress could have made the 1991 Act retroactive if it so chose). The landmark 1964 Civil Rights Act retroactively altered the law, immunizing civil-rights sit-in demonstrators from prosecution under longstanding state trespass laws for refusing to leave after being told to do so by business owners, and no one suggests it was unconstitutional for it to do so.
Critics also claim that the grant of immunity is a “taking” of private property, since it deprives plaintiffs and their lawyers of a potential sum of money that might otherwise become their property if they won their lawsuit. But a general change in the law that leaves civil litigants poorer has never been understood by the courts as a “taking.” For example, civil-rights bills have altered the law to eliminate trespass lawsuits against civil-rights demonstrators, even though that eliminates a potential sum of money that would otherwise be recovered by the business owner that suffered the sit-in.
Earlier, I explained why telecom immunity is good as a matter of public policy, and why arguments against the federal antiterror surveillance program itself are somewhat overblown. Telecom lawsuits like Hepting v. AT&T should be dismissed.