John Wohlstetter references the practical difficulty of making telephone companies responsible for the legality of government requests for surveillance of terrorist communications in a column for the Washington Times:
Standard telephone company practice, going back decades in criminal investigations, holds that on being served with a request from the government, it is visually scanned by company officials for facial validity, to determine if it looks like a proper legal document. Absent an obvious facial defect, the document is presumed genuine and lawful. Given the volume of such requests — many thousands per year — imposing any burden on companies beyond a facial scan to ascertain probable authenticity would lead them to decline such requests, thus forcing the government to go to court every time. The expense of even a victorious legal defense, let lone the risk of unsympathetic jurors returning million-dollar verdicts, would cause companies to strenuously resist cooperating.
Senate Judiciary Chairman Patrick Leahy (D-VT) claims that “telecommunications carriers will still have immunity for actions they take in the future. If they follow the law, they have immunity.” But he opposes retroactive immunity, believing that lawsuits against telephone companies are the only way the Bush administration will be “called to account.” That may be good politics, but it’s bad policy.
Identifying terrorists is a cat-and-mouse game, and by withholding retroactive immunity Leahy and others will frighten communications companies from cooperating with investigators the next time they try to employ novel or unexpected investigative techniques.