Two Sides of the Rule of Law Coin

The president has argued that “[i]f these companies are subjected to lawsuits that could cost them billions of dollars, they won’t participate. They won’t help us. They won’t help protect America.” Pretty scary stuff. But as Kurt Opsahl at EFF points out, if this is an accurate reflection of the telecom companies’ position (and it’s quite possible the president is misrepresenting their position), it’s little more than blackmail. It suggests that the telecom companies would hold the nation’s security hostage for a get-out-of-jail-free card.

Kurt also points out that complying with judicially-issued warrants isn’t optional. The intelligence community isn’t reliant on the goodwill of the telecom industry to ensure compliance. A company that refuses to participate in a lawful eavesdropping program would be ordered to do so by a judge and held in contempt if it refused. So there’s no reason to worry about the telecom companies “not cooperating.” Judges will compel them to cooperate if they’re legally required to do so.

In a sense, complying with lawful surveillance requests and refusing to comply with unlawful ones are two sides of the coin called the rule of law. It’s outrageous that a company would voluntarily violate its customers’ privacy when the law prohibits them from doing so. It would be equally outrageous for a company to refuse to cooperate after the government had gone through the appropriate legal channels. We don’t want decisions about who gets spied on to be subject to the whim of either the president or telecom executives. That’s why we entrust that decision to judges, who are knowledgeable about the law and insulated from corrupted influences.