Some say the FISA Immunity Act bars all investigations into the telecoms FISA violations. However, not all investigations into the telecoms have ended.
We believe state officials can enforce the law against the telecoms for violating privacy rights. This prosecution does not require a breach of the FISA Immunity Act, nor does it require the disclosure of classified, national security information related to the alleged FISA violations.
The telecoms have reporting and auditing requirements. The information has nothing to do with intelligence. It relates to how the telecoms report publicly on whether their internal procedures do or do not comply with their written corporate requirements.
These reporting requirements fall outside what the FISA Immunity Act restricts. Because of poor crafting, FISA Immunity Act creates a large opportunity, and loophole for the public and stockholders to review the telecoms for their alleged breaches of state privacy statutes.
It does not appear the Telecoms have truthfully reported information to the Securities and Exchange Commission related to their compliance with internal procedures to protect state citizens. This legal question is one we believe can be successfully litigated outside the contours of the FISA Immunity Act, and well within what state prosecutors can review through the securities laws.
Unlike the FISA Immunity Act which bars investigation into telecom assistance to the intelligence community, this litigation would focus on whether the telecoms complied with their internal working procedures re privacy statutes. This legal question is one we believe can be litigated without invoking the “state secrets” privilege of the Presidency re the alleged FISA violations after 2001 or covered by the FISA Immunity Act of 2008.
Securities Litigation to Enforce Against Telecoms Violations of Written Corporate Procedures re Privacy Protections
Securities litigation may be a means to gather evidence about Telecom non-compliance with state privacy statutes.
This information discusses an alternative to the FISA Immunity Act, and outlines a course of action to collect information related to telecoms not following their internal procedures re privacy.
EFF shared this reasoning: It opens the door to expanded civil litigation and criminal charges against those who violate written policies, not just the law.
EFF: . . . “[I]t gives employers the power to make behavior illegal just by saying in a written policy that it's not allowed”.
It’s a legal question whether there exists a written policy whether privacy protections would or would not be respected.
Arguably, a grand jury and stockholders could review the following per the Private Securities Litigation Reform Act (PSRLA); and determine whether there were false statements re Rule 10b-5 of the Securities Act.
This does not advocate intercepting communications in violation of FISA.
Legal Theory
FISA Immunity may bar enforcement of FISA violations, but the immunity act does not forbid enforcement of the Securities Laws related to corporate governance, auditing, and compliance with written procedures.
This litigation would sidestep whether FISA was or wasn’t enforced, to litigation under the Securities Laws whether written policies related to privacy (a) existed; (b) were ignored; or (c) were breached.
This litigation does not address whether the FISA Immunity Act [via EFF] is or isn’t Constitutional, but a legal question for the court.
Details
After 2001, the United States government allegedly engaged in unlawful electronic surveillance. The State AG’s attempted to conduct oversight of the alleged breaches of state privacy rights. However, the (arguably unconstitutional) FISA Immunity Act barred enforcement of these violations, and prohibited state investigations into telecom cooperation with the intelligence community.
However, telecom securities (stocks, bonds, notes) are publicly regulated. The FISA Immunity Act did not destroy corporate governance rules. The FISA Immunity Act did not prohibit stockholders, board members, or auditors from investigating whether there were violations of written corporate policies.
The results of these investigations are important for the investing public. The information would show whether there was or was not a pattern of recklessness within the internal auditing areas. Problems could indicate that despite PSLRA, there is inadequate corporate governance to ensure proper documentation of deviations from written policies.
The question isn’t narrowly whether the Telecoms can follow rules, but whether – despite these issues – corporate boards are aware of these problems. There cannot be adequate public confidence in corporate governance when the boards are dissuaded from reviewing whether there is or isn’t compliance with written procedures.
Holes in FISA Immunity
The FISA Immunity Act only restricts the states from taking action related to transfer of information from the telecoms to the intelligence community. It does not prohibit investigations into information from the telecoms to the Securities and Exchange Commission.
Note each of the following restrictions in the House Bill only regulate assistance to the intelligence community, and they are silent on investigations into compliance with internal corporate privacy guidelines:
FISA Bill, House Version:
‘‘(a) IN GENERAL.—No State shall have authority to—
‘‘(1) conduct an investigation into an electronic communication service provider’s alleged assistance to an element of the intelligence community;
Comment: “Assistance” doesn’t address internal controls or compliance with written procedures.
FISA Bill, House Version:
‘‘(2) require through regulation or any other means the disclosure of information about an electronic communication service provider’s alleged assistance to an element of the intelligence community;
Comment: “Assistance” is unrelated to an internal decision to audit or not audit a procedure. Did the board of directors document the deviations from their internal procedures, or not?
FISA Bill, House Version:
‘‘(3) impose any administrative sanction on an electronic communication service provider for assistance to an element of the intelligence community; or
Comment: A review of whether the board of directors properly monitored the deviations or compliance with these internal procedures is different than imposing consequences.]
FISA Bill, House Version:
‘‘(4) commence or maintain a civil action or other proceeding to enforce a requirement that an electronic communication service provider disclose information concerning alleged assistance to an element of the intelligence community.
This rule does not bar a civil action on a Telecom for failing to properly report to the audit committee, as required in writing, various exceptions. The details of those exceptions may be barred from disclosure; but a summary report should exist with a signature showing when the review occurred, and how the firm planned to address the deviations.
Analysis
The FISA Immunity Act does not bar all investigations into the Telecoms internal audits. The content of the information is different than an internal audit report – or decision – to report or not report deviations from the board of directors.
None of the Provisions within the FISA Immunity Act completely restricts interested stockholders from reviewing whether the board of directors adequately or did not adequately document deviations from internal written procedures.
Accordingly, we do not have enough information to know whether, despite written procedures, there was improper access to information the Telecom personnel were not authorized in writing. We don’t know whether the boards properly documented their concerns relative to the internal procedures, or took appropriate, timely action as they should as responsible directors.
This information is of interest to stockholders, bondholders, and potential market participants. This information raises issues of whether the board of directors can be trusted to properly make decisions behind closed doors about the adequacy of their internal controls; and, going forward, whether outside auditors are likely or unlikely to get the needed support to properly report truthful information to the public and SEC per PSRLA, re Rule 10b-5(a)
Congress [at (4), above] narrowly restricted proceedings which “enforce a requirement” related to information connected with assistance to the intelligence community. A corporate decision to ignore an internal, written agreement – and not document that decision and deviation -- is a different requirement than broader assistance the intelligence community.
Indeed, this is why we need to know the nature of the disclosure: Was it voluntary; if it was, was there adequate review of that deviation. If not voluntary, why should we believe that the board was adequately aware of how the deviations were or were not properly documented.
That deviation should have been documented as “authorized,” or “not authorized.” We do not know which deviations have been documented; nor do we know whether these internal control issues were properly audited and reported as required by the state corporate governance standards.
Indeed, had Congress intended to bar all investigations into any telecom activity related to compliance with written guidelines, Congress would have broadly prohibited “all” proceedings. However, this is not what Congress said. Rather, Congress, as PSLRA permits, did not intend to prevent the states from investigating the telecoms for violations of the securities laws or breaches of internal written procedures related to privacy requirements.
Each of the restrictions against state level investigations only relate to transfer of information to the intelligence community; or assistance to the intelligence community. The Act is silent on whether the financial, auditing, and internal control reports and information were or were not properly transferred to the corporate internal control officers, outside auditors, and the Securities and Exchange Commission.
Rather, the current proposed litigation would focus on whether service providers did or did not properly comply with corporate written procedures related to authorized access to private data.
Bypass EOUSA: State Enforcement of US Code
There is no absolute bar to state prosecutors enforcing the US Code, or refusing to involve US prosecutors in prosecuting a corporation’s alleged violations of both state and federal laws. Nothing in the FISA Immunity Bill prevents a state official from gathering evidence of Geneva violations linked with Telecom malfeasance.
State Interest in State-Regulated US Attorneys
It’s a serious issue when Federal Prosecutors refuse to enforce the laws of war. There is no illusion that a federal prosecutor decision not to enforce federal law is final. State prosecutors may prosecute Federal officials if they breach state criminal laws and duties related to privacy, evidence preservation, and the laws of war.
Federal prosecutors are regulated by the State Attorney Disciplinary board. They are not immune to state review on both professional and criminal levels.
There is a duty to act to enforce the Constitution and Geneva. That duty can include placing a peer within the legal profession at the Executive Office of US Attorneys (EOUSA) under state attorney investigation re privacy, Geneva, or other alleged high crimes. It’s a matter of law whether, after a state impeaches a federal attorney, whether that state-licensed attorney loses their license to practice law before the Federal Bench.
Geneva: A Duty of Prosecutors to Preserve War Crimes Evidence
Rather, it is an issue of alleged federal prosecutor malfeasance when a state regulator must use state resources to enforce federal law -- re violations of a state corporation’s compliance with written procedures – because federal officials refuse to enforce the laws of war.
Alleged Telecom Employee Improper Data Access, In Violation of Written Procedures
Another prong of potential litigation is applying a rule that says its “OK” to prosecute someone for violating a written procedure.
EFF outlines some information, which is of interest to those seeking damages from the Telecoms, and still gathering this information despite the FISA Immunity Act restrictions.
EFF: “The government prosecuted the former employee under the federal Computer Fraud and Abuse Act (CFAA), arguing that his accomplices had authority to access the database for some purposes, but exceeded that authority when they accessed it for a purpose that violated corporate policy.”
EFF Re: US v. Nosal
One legal question is whether there is expansive discovery allowed against the telecoms through the securities litigation. This review would expansively compare what the telecoms were doing when they reviewed private information; and what their written procedures required them to do.
The question isn’t here whether they were or were not involved with supporting intelligence, but did they follow their written procedures; and how was this compliance or non-compliance correctly or incorrectly reported to the audit committees, board of directors, internal auditors, the external auditors., and the Securities and Exchange Commission.
There is a difference between access for “some” purposes and “others” which may or may not violate corporate policy. We do not have insight into which written procedures the telecom personnel ignored or followed; and how this internal control decision was documented in reports to the internal audit committee re procedural compliance, and litigation risk assessments.
From the opinion:
Opinion: Although we are mindful of the concerns raised by defense counsel regarding the criminalization of violations of an employer’s computer use policy, we are persuaded that the specific intent and causation requirements of § 1030(a)(4) sufficiently protect against criminal prosecution those employees whose only violation of employer policy is the use of a company computer for personal — but innocuous — reasons.
US v. Nosal
The court opens the door to reviewing whether the use of that information was or wasn’t consistent with the written policy. We don’t have to look at the violations, or know how someone interpreted FISA, or whether they wanted to do a good job in supporting the intelligence community.
We’ll look only at what the written procedures required re private data; whether the telecoms followed those procedures; and how this deviation or compliance was or was not correctly or incorrectly reported through the audit committee to the board, outside auditors, and the Securities and Exchange Commission.
Section 1030:
Opinion: “Subsection (a)(4), the subsection under which Nosal was charged, subjects to punishment anyone who “knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value.” Id. § 1030(a)(4).
US v. Nosal
Here, the discovery focuses on whether the written procedures defined a specific level of authorized activity; and whether the telecoms conducted proper reviews of those requirements; and whether there was documentation. This documentation could be a periodic review, or a supervisory certification that the procedures were correctly followed and consistent with the written documentation and requirements.
Continuing:
Opinion: The government contends, on the other hand, that Brekka counsels in favor of its interpretation of the statute — that an employee exceeds authorized access when he or she obtains information from the computer and uses it for a purpose that violates the employer’s restrictions on the use of the information.
We have jurisdiction under 18 U.S.C. § 3731, and we agree with the government.
US v. Nosal
One question is whether the Telecom employee had written instructions over what was or wasn’t authorized to review; and whether there was an adequate procedure in place to monitor whether that employee was or was not complying with that written guidance.
This has nothing to do with what the Telecom was doing for the intelligence community, but has bearing on the truthfulness and usefulness of internal audit reports. The issue isn’t whether the Telecoms were providing information to the intelligence community, but were the telecoms following their written procedures; or were they doing something else without adequate documentation. We need to know how prevalent this pattern was, whether the boards were involved, and the impact this deviation may have on accuracy and reliability of financial reporting data to the open markets.
Without a fair showing that there was a strict privacy-compliance regime in place, the Telecoms are not well suited to defend themselves. Rather, the public needs to know how these deviations – and poor oversight – in the procedural compliance areas drifted into other areas including financial reporting.
Then the next question is whether the auditors adequately increased audit scope; or whether the auditors made excuses not to increase audit scope despite what appears to be problems with Telecom compliance with their internal written procedures re privacy.
Legal, Auditing, Internal Control Questions
Here are some sample questions which may guide investigators as you review the telecom compliance with their written procedures. This is a point of departure as you conduct your audit and attempt to review whether the telecoms have adequately reported their compliance in documentation to the board of directors, audit committee, outside auditor, and to the Securities and Exchange Commission.
These questions presume that there is a preliminary inquiry at the local level, that the PSLRA Rule 10b-5 is applied, that there are indications that the telecoms have not adequately provided public documentation about their compliance or non-compliance with internal written procedures, and the legal team is both (a) versed in PSRLA; and (b) aware of the contours of the FISA Immunity Act.
Telecom Internal Audit Review
These questions review whether the internal audit was adequate; and helps form a baseline to evaluate the accuracy of telecom reporting on procedural compliance.
- What written corporate procedures defined how the employees could access, review, and store the information collected;
- Was any protected information improperly accessed, in violation of any written policy;
- Who authorized the deviation from the written corporate policy on privacy;
- When were the corporate boards involved with the decision to breach these documented, internal corporate procedures related to information use, access, and review;
- How were these deviations documented in reporting to internal auditors, external auditors, corporate board, and filings with the Securities and Exchange Commission;
- What was the written, documented, and authorized access of a particular corporate employee related to authorized breaches of corporate written privacy standards;
- What information and assurances were the corporate employees provided related to compliance, adherence, and enforcement of written corporate policies;
- Which of these assurances should the employee, contractor, or government official have known were false, or inadequate compliance with corporate policies;
- When did the employee first learn they had access to a database that contained information that was not authorized – to be viewed, collected, or retained -- under written corporate procedures;
- When did corporate employees know or should have known they had access to information that violated written corporate policy;
- When did corporate employees access, view, modify, store, or retain information they knew or should have known violated corporate written policy;
- What were the measurable losses to investors because of the false information related to compliance with written procedures given to auditors, the market, and SEC per PSLRA;
- What corporate agreements, contracts, or hiring decisions were created on the back of these allegedly false assurances related to compliance with written agreements?
Some legal questions are (a) whether there were adequate corporate policies that documented appropriate telecom employee conduct; and (b) whether violations of those policies were consistently enforced or not. The slippery slope would have us conclude that all corporate activity – during wartime – cannot be investigated. This defies the intent of the PSRLA which asks for reliable information for the capital markets 24/7, even during wartime. Taken further, the United States -- which essentially engages in perma-war -- would demand that all corporate information be immune from investor review because the corporate activities were during wartime.
Congress has not said that corporate or government reviews are beyond review during wartime. Indeed, Youngstown shows us that even the President during wartime is subject to judicial review. It follows that during wartime, a board of directors should remain subject to investor review.
One class of investors who have standing to bring lawsuits against telecom boards of directors and employees are stockholders who held shares after 9-11. The public needs to know which written policies existed, which activity was not allowed, and which activity – despite restriction – continued despite the reporting to the board of directors and internal/external auditors.
EFF continues: “. . . it gives employers the power to make behavior illegal just by saying in a written policy that it's not allowed.”
EFF re: US v. Nosal
Arguably, unlawful behavior is activity that violates the law; or tends to unlawfully support, contribute, and insulate those who have violated the law.
1. Who had a legal duty with to create written policies to ensure there were procedures in place to fully comply with requirements to ensure customer privacy;
2. What payments were exchanged for not following the express written policies of the corporation
3. When did the US government threaten legal sanctions on the corporation or its officers for not following the corporate policies, written procedures and other things;
4. What rewards did legal counsel from the telecoms receive from the US government for not following these written procedures
5. Can any of the above allegations related to bribery, extortion, and conspiracy be proven in a lawful court with judicial oversight of these securities related issues.
Potential litigation targets:
A. Law enforcement personnel who allegedly made inducements, threats, or other promises to encourage employees not to follow written corporate procedures, thereby providing false information to (a) auditors on internal controls and legal compliance; and (b) the markets, and thereby artificially inflating the value and goodwill of SEC-registered stocks.
B. Members of Congress, the professional staffs and their legal staff for allegedly encouraging others to not fully comply with written procedures, in contravention to reasonable expectations of stockholders.
C. Department of Justice personnel who knew or should have known that there were unlawful methods, inducements, or consideration to encourage others to not fully comply with internal written procedures required of SEC-reporting companies.
Discussion
A plain reading of the FISA Immunity Act does not expressly bar all securities investigations, especially those related to corporate governance and internal audits related to compliance with written procedures. The FISA immunity bill does not expressly prohibit enforcement of the Securities Laws related to alleged fraud on the market or other inducements related to ignoring, breaching, or invalidating written corporate procedures.
The FISA Immunity Act only regulates investigations into activities connected with supporting or transferring information to the intelligence community. It is a matter of law how the courts distinguish between (a) an “activity” connected with the intelligence community; and (b) a corporate internal control review and compliance procedure related to a written standard as reported to internal audits, outside auditors or the Securities and Exchange Commission.
Because the SEC publishes public information, it cannot be reasonably argued that the intent of the transfer of the corporate information or its internal procedure was to provide this information to the intelligence community.
The intent of the transfer of information was for a financial purpose: To provide internal and external auditors and the public with assurances about the Telecom’s internal procedures. It is a matter of law whether the telecoms properly complied with the internal written corporate procedures related to personal privacy.
We believe these legal questions could be litigated when the information is properly redacted and segregated from the sensitive information related to data provided to the intelligence community. Such a possibility arguably leaves open the question whether DOJ OLC could survive a motion for summary judgment re “state secrets”-claims.
This litigation could keep open the securities litigation re these written policies until there was a legal conclusion whether FISA was or wasn’t lawful; and whether the written policies – consistent with FISA – were or weren’t lawful or enforceable.
However, DOJ OLC appears to be in an untenable position. First, it appears DOJ OLC would like to wait to avoid addressing these issues; but then quickly dismiss a suit without a fair hearing into the difference between financial and intelligence information.
DOJ OLC cannot credibly argue that the FISA violations “cannot” be litigated until the court determines whether the FISA Act is or isn’t unconstitutional; but contradict their position and claim the issues must be dismissed without adjudication over the difference between (a) internal control-compliance information provided to the SEC; and (b) activities related to information provided to the intelligence community.
Even if the FISA Immunity Bill were Constitutional, DOJ OLC cannot credibly claim “all” investigations into the telecoms should end or claims dismissed. Even broadly applying the FISA Immunity Act bar to investigations, DOJ OLC cannot explain why the telecoms still provide public information to the SEC per PSRLA. The AG and US prosecutors have has no power to enforce any rule which bars any state from enforcing state securities regulation re internal controls and compliance with corporate written procedures.
It is a matter of law – for the court to decide, not for DOJ OLC to assert – whether the proposed expansive litigation against the telecoms is or isn’t intruding on the contours of the (arguably, unconstitutional) FISA Immunity Act.
Geneva: Evidence Retention Requirement, Foreseeable Litigation
The Securities Laws are a tool to gather evidence of other alleged illegal activity. This can include the collection of alleged war crimes evidence connected with the telecoms, US prosecutors, and others in DOJ OLC.
Nuremberg expressly imposed a legal duty on attorneys to gather evidence of war crimes, and ensure timely investigations into breaches of the laws of war. It is a matter of international law whether the FISA Immunity Act created a (false) excuse for the telecoms to not retain evidence connecting US personnel to Geneva violations.
Beyond the limitations of the FISA Immunity Act, there is no statute of limitations for war crimes. It is a matter of law whether, despite the FISA Immunity Act, prosecutors at the state and local level did or did not faithfully discharge their duties to preserve evidence of Geneva violations collected through (unlawful) FISA surveillance.
When DOJ OLC argues the surveillance is lawful, it cannot explain why that “lawfully collected” evidence of war crimes was not also retained. A prosecutor knew or should have known they had a duty to preserve this (rightly or wrongly collected) evidence.
DOJ OLC has not adequately addressed in public – as it should – what should be done with procedures, data, and other evidence unlawfully gathered related to Geneva violations. When granted immunity, there should be no reason for destroying that data. If destroyed, it raises questions whether the participants really believed there was absolute immunity for their action, or whether there were other foreseeable litigation or possible causes of action which should have triggered an evidence retention requirement. That foreseeable litigation should have triggered an evidence retention plan, and legal memorandum from DOJ OLC to the combatant commanders, then through law enforcement through the telecoms.
If these notifications did not occur, the public should question the internal procedures the US, state, and local governments use to notify law enforcement of important evidence preservation requirements per the laws of war. A failure to ensure proper, timely notifications to preserve this evidence is an alleged subsequent breach of Geneva. It remains a matter of international criminal law and the laws of war if or how foreign powers choose to attempt to enforce this requirement against the United States and individuals.
Legal Question: Does the FISA Immunity Act Lawfully Establish a Specific Class of Defendants, or Establish a Pattern of Non-Enforcement
A pattern of failure to enforce law and written policies is – in some jurisdictions – a reason why a prosecutor or grand jury might argue that it will not enforce a given law against another class of defendants or violations.
Geneva: A Concern With Lack of Enforcement
It’s a concern if, as it appears now, there were decisions not to enforce the law; and these “non enforcement” decisions continued re Geneva. Geneva is implicated if the FISA Immunity Act is linked with a pattern of (unlawful) US government non-enforcement -- or breaches -- of Geneva.
Without a demonstrated, adequate oversight and enforcement system, the American Geneva-compliance program crumbles. When that occurs, outsiders may consider other actions to do what the US government refuses to do: Enforce Geneva and preserve evidence of alleged war crimes. This evidence might include information the US government unlawfully collected.
Geneva
For a statute to be lawful, it must be consistent with international treaties. FISA and the FISA immunity act cannot intrude on the United States government’s obligations under Geneva to lawfully wage war, gather and preserve evidence of war crimes, and successfully show there is a coherent prosecution team in place to enforce the laws of war.
One legal question:
Has the FISA Immunity Act in any way induced anyone to not enforce the laws of war, or not retain any evidence of war crimes by breaching these written corporate privacy agreements?
The AG cannot argue that civilian courts are “good enough” during wartime, but those civilian prosecutors fail to fully embrace all Geneva requirements applicable through the FISA evidence retention requirements. International tribunals must have confidence that American civilian prosecutors are well versed on the evidence retention requirements re Geneva, otherwise outside judicial review is required re Geneva.
At this juncture, we have excuses not to conduct investigations, not to review which evidence the US government has collected in violation of FISA, and no discussion how the corporate written procedures were or were not followed. This is an uneasy playground for other unlawful activity in the intelligence community, law enforcement and criminal justice system.
A decision to refuse to enforce Geneva against American soldiers – using evidence which may have been unlawfully gathered – is one for the court to review: Once that unlawfully gathered information was captured, did the prosecutors properly conduct themselves, or did they ignore standards of conduct applicable during times of war
The government has not adequately argued that securities enforcement and auditing of corporate written polices will necessarily intrude upon state secrets. Publicly traded firms rely on public Information, including public audit reports. There is inadequate information before us to suggest that any public auditor, reporting on SEC-registered firms, has a special, independent, or non-public reporting requirement on matters of state secrets.
The investing public should know whether some corporate frauds related to stock valuation cannot be measured because of blanked shields to some types of state-sponsored violations of corporate written procedures.
The public needs better information related to the valuation the market places on this pricing and information risk. It remains a matter of public interest the scope of these alleged breaches of written corporate policies; and to what extent this lapse in corporate enforcement contributed to larger patterns of alleged malfeasance, corporate fraud, or other multi-jurisdiction frauds.
Moreover, the public does not have enough information about the scope of the FISA violations – and the attached breaches of corporate written procedures – to assess the price premium within the market. One approach is to estimate the market premium based on breaches of written corporate policies. This estimate requires enforcement, review, and research not immunity. Indeed, with immunity, this information should be forthcoming, not buried.
It is a secondary legal question whether there were subsequent inducements to boards of directors, auditors, or others to ignore whether there were violations of some corporate written policies.
Alleged Complicity of Government Officials
Another approach is to consider whether Members of Congress and their professional staffs have exceeded their authority when reviewing unlawfully gathered information.
Did Members of Congress and others know – or should they have known – that, inter alia
- (a) the fruit of the interception was information they used for personal gain or personal immunity (alleged unjust enrichment);
- (b) the financial statements, audit reports, and corporate governance process was improperly compromised, despite public statements per PSLRA to the contrary (alleged fraud on the market);
- (c) they made individual trades, purchases, or stock transfers based on improper corporate governance compliance they knew or should have known would unfairly inflate stock prices, despite requirements of rule 10b-5 (alleged insider trading); and
- (d) they participated, refused to act, or derailed investigations because they knew or should have know the above alleged unlawful activity was connected with breaches of written corporate policies (alleged malfeasance).
It defies reason to believe that there is absolute immunity. Public servants can purchase liability insurance.
It was foreseeable that there might be personal liability or criminal charges because of breaches of written agreements. That purchase of liability insurance is evidence that they knew or should have known there might be legal questions related to their performance, and whether they were or were not inducing others to not fully comply with clearly promulgated written procedures required to SEC-registered firms.
Judicial Review of Compliance with Corporate Written Procedures
These are issues of internal controls and written procedures, not enforcement of FISA. It’s a legal question how the government and court chooses to distinguish between state secrets, FISA violations, and violations of corporate written procedures.
The prohibitions within the FISA Immunity Act are subject to judicial review. Arguably, until the courts determine the FISA Immunity Act is lawful, it is unclear whether the US Congress can pass legislation barring all securities investigations into federally sponsored breaches of state corporate written guidelines.
Conclusions
State prosecutors can gather evidence of telecom employee breaches of written corporate policies for purposes of enforcing the state securities statutes, accounting laws and corporate board standards of conduct.
It is an illusion that the FOIA process shields contractors, or that the government can hide illegal activity behind the veil for corporate stooges.
The public needs to know the level of corruption within EOUSA. State officials with the State Attorney Disciplinary Boards need information about whether federal prosecutors licensed through their states have a higher loyalty to the Constitution and Geneva, or to something improper like evidence destruction and conspiracy re the laws of war.
The Securities Laws are a tool for the public to demand corporate information. This information will help shed light on corporate conduct, and what information state and federal prosecutors had available before making declination decisions. The Grand Jury should have access to these records to make informed decisions about whether the decision to breach corporate written policies was or was not improper.
This lawfully gathered information – outside what the (arguably unconstitutional) FISA Immunity bill prohibits – may be subsequently used for Geneva enforcement: When did US government personnel, agents, contractors, security personnel or others become aware of Geneva breaches, but refused to enforce these provisions or failed to preserve evidence as required under the laws of war.
Holes in FISA Immunity Act
The FISA Immunity Act does not absolutely bar all investigations into corporate information provided to non intelligence community personnel and agencies.
The US government has not satisfactorily argued that all securities litigation related to breaches of corporate written policies are absolutely barred under the FISA Immunity Act. It’s unclear whether government personnel or contractors could be prosecuted for breaches of written corporate guidelines under the state securities laws.
PSLRA Opens Door To Review of Telecoms
The Private Securities Litigation Reform Act broadly defined corporate governance standards, and is enforceable through Rule 10b-5(a) of the Securities Act.
Indeed, the State Securities Laws (as distinguished from the Federal Securities Laws) broadly define the quality of information provided to the public, auditors, and others outside the intelligence community to make investment decisions.
9th Circuit Opened Door to Litigate Re: Deviations from Written Procedures
EFF points to a 9th Circuit Decision which makes illegal activities which breach a written policy. Written policies are not isolated to corporations, but include government.
Legal Questions
It’s unclear how the 9th Circuit Court decision might have opened the door to expansive litigation against law enforcement and other government officials for their alleged complicity which breaches of state corporate governance laws and other written corporate policies.
It’s an open question how computer use policies will affect Telecom-connected employees. It’s unclear whether personnel in the Telecoms knew or should have known they exceeded their authority when they accessed information that breached written corporate guidelines related to privacy.
It is unclear whether there existed Telecom written guidelines that expressly barred employees from accessing or reviewing information they knew or should have known breached the written privacy agreements with customers.