that is what Benjamin Civiletti, Dick Thornburgh and William Webster are calling a failure to grant conditional civil immunity to private individuals and companies who cooperate with authorities in national security matters. Specifically, they are talking about provisions in a FISA revision bill that would grant some immunity from civil litigation to telecom companies that cooperated with post 9/11 surveillance.
Public disclosure of the NSA program also brought a flood of class-action lawsuits seeking to impose massive liability on phone companies for allegedly answering the government's call for help. The Intelligence Committee has reviewed the program and has concluded that the companies deserve targeted protection from these suits. The protection would extend only to activities undertaken after 9/11 until the beginning of 2007, authorized by the president to defend the country from further terrorist attack, and pursuant to written assurances from the government that the activities were both authorized by the president and legal.
We agree with the committee. Dragging phone companies through protracted litigation would not only be unfair, but it would deter other companies and private citizens from responding in terrorist emergencies whenever there may be uncertainty or legal risk.
The government alone cannot protect us from the threats we face today. We must have the help of all our citizens. There will be times when the lives of thousands of Americans will depend on whether corporations such as airlines or banks are willing to lend assistance. If we do not treat companies fairly when they respond to assurances from the highest levels of the government that their help is legal and essential for saving lives, then we will be radically reducing our society's capacity to defend itself.
This concern is particularly acute for our nation's telecommunications companies. America's front line of defense against terrorist attack is communications intelligence. When Americans put their loved ones on planes, send their children to school, or ride through tunnels and over bridges, they are counting on the "early warning" system of communications intelligence for their safety. Communications technology has become so complex that our country needs the voluntary cooperation of the companies. Without it, our intelligence efforts will be gravely damaged.
As they point out, the issue of the legality of the program is completely different from the question of whether the companies acted in good faith when asked for help. Private citizens and companies are expected to cooperate with officials when there is a public need. Those entities cannot know all the facts and have to rely on assurances from the official that the needs – and the assistance – are legal.
This situation is precisely the same one that came up with the six flying imams and their threat to sue "John Does" who reported their antics. The public – individuals or corporations – have to help and be alert in these times.