The head of the NSA Keith Alexander has asked Congress to pass legislation that would give blanket immunity to companies that commit illegal activities at the request of the NSA. Alexander explains it this way, “If the government asks the company to do something to protect the networks, or to do something and a mistake is made, and it was our fault, then they should have liability protection for that.”
As Mike Masnick says, this sounds reasonable until you think about it for a bit.
There’s some logic behind that, because when you get an order from the government, you often feel compelled to obey. But, of course, the reality is that this will give blanket cover for companies voluntarily violating all sorts of privacy laws in giving the NSA data. And, theoretically you could then sue the government over those violations, but we’ve seen in the past how well that goes over. First, the courts won’t give you “standing” if you can’t prove absolutely that your data was included. Then, if you get past that hurdle, the government will claim “national security” or sovereign immunity to try to get out of the case. And, even if it gets past all of that, and you win against the government, the feds shrug their shoulders and say “now what are you going to do?”
The net result of such a move would be total immunity for the government and private companies for any illegality.
This new attempt recalls the retroactive immunity that Congress gave the telecommunications companies for their breaking of federal laws back in 2008 as a result of their participation in a domestic wiretapping program. It set the scene for a complete reversal by Barack Obama on this issue. He fought granting immunity when campaigning for the nomination, thus endearing him to the civil libertarians, and abruptly switched once he had secured the nomination. It was the first of many cases where he revealed that he was not be trusted on civil liberties and that he was one of the most vigorous supporters of a secretive and powerful national security state.