Telecommunications companies in the crossfire betweencongressional Democrats and the White House face lawsuits so breathtaking that it’s a wonder they continue to help anti-terrorism efforts at all when other industries already have balked.
But it’s not just the telecoms at risk: If the plaintiffs receive everything they request, the telecoms could not even survive, and the nation’s entire, everyday communications network could fracture.
To review: The Protect America Act, the controversial part of which provides for electronic surveillance of suspected foreign terrorists’ communications into the United States, expired Feb. 15.
Although a compromise, bipartisan bill passed the Senate by an overwhelming margin, and although a majority of the House supports the Senate version, the House Democratic leadership has not let the bill be voted on. The only major sticking point is a provision giving retroactive immunity to the telecoms for their help with emergency surveillance following 9/11. The trial lawyer-financed Democratic Party wants to let the telecoms be sued.
For perspective, consider that as far back as 2003 or 2004, some hoteliers were far less willing to assist with national defense than the telecoms have been. A former senior official at the Justice Department reports that certain hotels in Las Vegas refused targeted requests for access to their registries.
They did so even though they were presented with official “National Security Letters” warning of a possibly imminent terrorist plot. (National Security Letters from the FBI — for domestic use — are highly analogous to, but not the same as, the certifications of legality presented to the phone companies for the foreign terrorist surveillance program.) No disaster resulted from the hotels’ refusal, thank goodness, but a true horror really might have ensued.
Now consider Hepting v. AT&T, one of the dozens of class-action suits already filed against the telecoms. It reads like the account of a vast fishing expedition in which the plaintiffs claim that any small minnow they catch is a veritable Moby Dick of a privacy invasion.
It claims the surveillance program “intercepts and analyzes the communications of millions of Americans” in an “illegal domestic spying program.” Never mind, of course, that the only way “millions” of Americans could be said to be affected is if they are said to have been subject to unlawful “search and seizure” just by having their phone numbers show up as tiny data bits among “4,000 terabytes (million megabytes)” on the same network that is monitored for the targeted foreign calls. This is hardly a real privacy violation.
Moreover, the suit defines the class of aggrieved citizens as “all individuals” who were customers of the phone company “at any time after September 2001” that the program was ineffect. In this one suit, that class is identified as consisting of 24.6 million people. How all 24.6 million Americans could possibly be harmed by this program aimed at suspected foreign terrorists is a question perhaps best answered in the Twilight Zone.
The suit gets wilder still. Not only does it ask for at least $1,000 for each class member for each of two alleged types of violation, but on each of two other counts it asks the companies for at least $100 per alleged victim per day of violation — plus punitive damages and attorney’s expenses.
Do the math: The total potential payout by AT&T for the first two categories of alleged violations is $49.2 billion. Meanwhile, at $100 per day for each day of the four years at issue after 9/11, the total potential liability for each of the two latter counts is $3 trillion, 591 billion.
That number times 2, plus the $49.2 billion, comes out to a potential grand liability of $7.243 trillion. That is half of the entire national economy! And that’s even before “punitive damages” are taken into account.
Of course, no court would ever approve payments so high. One wonders whether the plaintiffs’ lawyers themselves even did the math. But the sheer audacity of a suit anywhere near this size makes a sane observer shudder.
The telecoms should not be forced to worry about such nonsense. As they do, we all suffer: As a senior administration official confirmed Tuesday, American agencies actually were denied some important surveillance capabilities in the days after the law lapsed. And that intelligence may be the most costly loss of all.
Quin Hillyer is associate editorial page editor of The Washington Examiner.
