So I spend the day in a very long, very contentious deposition in a child custody case. I meet the wife and kids for dinner afterwards, and I innocently say "So, what's been going on today?" So my wife tells me. And being the good lawyer that I am, I immediately think "What's in this for me?" (Not really, but it sounds good -- my actual first thought was, "This presidency is OVER!")
Then I ran across the piece from Think Progress about the liability of the telecom companies. Then I REALLY did think, "Shit, there really may be something in this for me!" And you. And you and you and you and you. Pretty much anyone with a telephone who wasn't a Qwest customer.
I don't know if anyone else has ever used this phrase, but I'm convinced that the idea of tens if not hundreds of billions of dollars in class action liability has given me my first blogasm. And yes, it was good for me.
Read the analysis after the flip and see if you agree with me.
This morning, USA Today reported that three telecommunications companies - AT&T, Verizon and BellSouth - provided "phone call records of tens of millions of Americans" to the National Security Agency. Such conduct appears to be illegal and could make the telco firms liable for tens of billions of dollars. Here's why:
1. It violates the Stored Communications Act. The Stored Communications Act, Section 2703(c), provides exactly five exceptions that would permit a phone company to disclose to the government the list of calls to or from a subscriber: (i) a warrant; (ii) a court order; (iii) the customer's consent; (iv) for telemarketing enforcement; or (v) by "administrative subpoena." The first four clearly don't apply. As for administrative subpoenas, where a government agency asks for records without court approval, there is a simple answer - the NSA has no administrative subpoena authority, and it is the NSA that reportedly got the phone records.
2. The penalty for violating the Stored Communications Act is $1000 per individual violation. Section 2707 of the Stored Communications Act gives a private right of action to any telephone customer "aggrieved by any violation." If the phone company acted with a "knowing or intentional state of mind," then the customer wins actual harm, attorney's fees, and "in no case shall a person entitled to recover receive less than the sum of $1,000."
(The phone companies might say they didn't "know" they were violating the law. But USA Today reports that Qwest's lawyers knew about the legal risks, which are bright and clear in the statute book.)
3. The Foreign Intelligence Surveillance Act doesn't get the telcos off the hook. According to USA Today, the NSA did not go to the FISA court to get a court order. And Qwest is quoted as saying that the Attorney General would not certify that the request was lawful under FISA. So FISA provides no defense for the phone companies, either.
In other words, for every 1 million Americans whose records were turned over to NSA, the telcos could be liable for $1 billion in penalties, plus attorneys fees. You do the math.
Be still my heart. A political goldmine combined with a lawyer goldmine, all wrapped up in one little neat USA Today package. I quivered, I shuddered, and now I need to get after this.
But seriously, beyond my dreams of billions and billions of dollars in fees, there's a whole series of larger questions. What were these companies thinking? These suits WILL HAPPEN, and these companies will almost undoubtedly be liable. They have done their shareholders a great disservice, and they will be hit with lawsuits over THAT as well.
Most importantly, they have done the country and our laws and our institutions an even greater harm. And for what? For short term access and gain. For political and corporate favors. Want to run the Internet for profit? No problem, just give us all your call data. Want government contracts? No problem, just violate every law in the book and we'll call it national security.
If someone can explain to me how this situation is conceptually any different from Duke Cunningham or Jack Abramoff or Tom DeLay, I'd like to hear it. As I see it, the only difference is that this was a direct line from the corporations to the highest levels of the Bush Administration. No middlemen. No Brent Wilkes. No hookers. No limo companies. Just straightup, old-fashioned, Tammany Hall-style graft. Help us violate the civil rights of every American and we'll help you out with whatever you want. And if you don't help us (Qwest), we'll cut you off at the knees and make sure you don't get any contracts. Paging Alphonso Jackson . . . . . .
This is all so obvious, it would only take someone at the intellectual level of Steno Sue Schmidt to type it up, send it in, and print that motherfucker. Think anyone in the media will have the guts to do it? My take is this -- that'll happen right after Richard Cohen reconsiders and decides that maybe Stephen Colbert had a good point to make about the complicity of the media in the war in Iraq.