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The Debate Over Wiretapping Liability--Stuntz

I confess I don’t understand the current debate in Congress about legal liability for telecom companies that cooperated with the government in the wake of September 11. The issue isn’t whether the kinds of assistance those companies provided ought to be legal—Congress is free to decide that issue prospectively. The only real question is whether, having been promised that they would not face legal liability for their actions, the promise should now be revoked, retroactively.

That just isn’t a hard question.

Governments of both parties sometimes need to respond to emergencies, and in doing so, they will often find the cooperation of private individuals and institutions helpful, even essential. American law has a long tradition of exempting “good Samaritans” from legal liability for the collateral costs of assistance they provide in times of individual crisis. The government’s relationship with the telecom companies is squarely in that tradition.

If promises like the ones that were given these companies are revoked as soon as the partisan wheel turned, in the future such promises will be worthless. That’s bad news for ALL future governments. Congressional Democrats—they’re the ones striving to maximize the risk of liability for the telecom companies—seem to be doing something that used to be the defining characteristic of Congressional Republicans: behaving like the party of opposition, not the party of government.

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Comments ( 2 )

I agree with your comment about breaking promises, but I wonder if you overlook a very simple explanation for the stubbornness of the congressional democrats on this issue. They are seeking to create a new bonanza for one of their biggest constituencies: plaintffs' attorneys.

Whether this is a fair, or an unfair, response to some of the GOP's attempts to defund the big shot plaintiffs attorneys is another question.

The Good Samaritan exception occurs in court, where the details of an action can be reviewed and evaluated. Passing a law that says, "I don't know what you did, but whatever it was, it was OK" is not the same thing.