Getting wiretaps rights

Congress appears set to pass an emergency wiretapping bill. Contrary to the claims of the ACLU I think Congress got it right. The government would be required to get court approval before all wiretaps. Perfect, sounds good to me. The government would also be given a 7 day window to wiretap if they believe information will be lost before they get approval for the wiretap. OK, thats fine, as long as a court gets to review whether or not such a determination was reasonable I see no problem here. The one modification I think necessary is if the court determines it wholly unreasonable to wiretap (something more than simply denying the warrant application and more akin to a standard of "the government could not have reasonably believed they would get a warrant") then the information cannot be used at trial.

The ACLU seems to be up in arms about the fact that it would allow companies' to escape liability from past violations of the old law if they produced written certification from the President that they would be ating lawfully in complying with the government's wiretapping program. The ACLU specifically said it is absurd because they already know that such paperwork exists. OK, so what? I think it perfectly reasonable to rely upon the President's determination that an action in aid of the government is legal. If the President is wrong I don't think private companies should be subject to suit unless it is obvious that the President is wrong or acting in bad faith. While the President does appear to have been wrong here, I can hardly blame the phone and internet companies who relied upon his certification. If the government violates my privacy I blame the government, not the private companies or individuals they coerced into helping them. I think reasonable reliance (reasonable being key) upon the President's assertion of the legality of the actions in connection with a governmental request should bar suit against the private person or entity. Therefore, the fact that in this case it turns out the companies did in fact have such assurances merely means they didn't doing anything wrong, and therefore shouldn't be subject to suit.

Think about it this way, if a police officer asks you to do something and you aren't sure if it would be legal the natural response is to ask something along the lines of "are you sure thats legal?" If the officer responds it is definitely legal, and you know time is of the essence because an extremely violent felon or terrorist is about to get away, would it be unreasonable for you to rely upon the officer? Of course not, not unless it is obvious the officer is lying to you or wrong. Should you now be subject to suit for reasonably relying upon the officer? Certainly not. If it was reasonable for these companies to rely upon the President's assurances and they did in fact do so then I see no reason why they should be subject to suit. As such the mere fact this bill codifies that these companies didn't act in a manner that should subject them to tort liability is no reason for alarm. The ACLU seems to be bitter about the fact these companies may not have done anything wrong. The question should be whether or not this bill will absolve guilty wrongdoers, not the creation of wrongdoers where they don't exist. The focus should be on the President and his error in creating the illegal wiretapping program, not the private companies who reasonably relied upon the President's assurances the program was in fact legal.

Madison