Read that way, I'm actually pretty happy with the bill. I think it's reasonable for a company to take the government at its word if they have some sort of official document stating that something is legal, if for no other reason than making people/companies liable for checking such things would lead to a situation where people would try to keep the police out of their homes while they checked the validity of search warrants, etc. Also, if the telcos have to produce the documents saying that the action was legal, then there's the start to a paper trail leading to the person who made the decision, which is the real thing that I'd like to see come out of all this.

Can you describe the process you imagine being used to create such a letter?

That first is called a warrant. At best, the new process will involve a sign-off by the Attorney General or one of his deputies. That means a much lower standard of proof, only one branch involved, and less commitment to (due) process.

No, this is just a lousy way of creating a scapegoat that can be easily axed. It will make it impossible to pursue any meaningful action.

Let me pose a hypothetical scenario.

Suppose that George W. Bush catches the fiscal conservatism bug and decides that a great way to save money would be to house American soldiers that aren't stationed overseas in the homes of ordinary Americans. Bush issues an executive order -- let's call it the House Our Soldiers Executive Decree -- and "asks" all mortgage lenders to comply. Someone at the Department of Justice sends out a letter proclaiming that the President's idea is both Constitutional and brilliant.(*) A week later, several mortgage lenders announce that they will foreclose on all properties, even those on which the owner has never been late with a single payment, in which the owner refuses to quarter U.S. soldiers.

Question: Would you support later granting retroactive immunity to those mortgage companies?

(*)It won't be until records are declassified 50 years later that the public finds out that the original letters were written in crayon with letterhead that reads "Departmant of Justiss", but if the letters are requested by a court, the actual Department of Justice is prepared to forward on a properly typeset letter that preserves the intent of the original.

what vfish said.

If the only requirement is that someone in the government says it is legal, what happens the next time they do something patently illegal. Like say, wiretapping US citizens who are NOT phoning someone outside the US? Or reading your email? Or putting a bug in your house?

(That said, I don't really like retroactive immunity in this case. Everyone else, in theory, has to deal with the law as it is, not the law as they maybe hoped it was.)

What they did without a warrant or oversight is patently illegal. There are circumstances under which they could have done what they did, but they chose to ignore those procedures. So, what if they ignore other procedures, like say due process, or a trial by a jury of my peers? If the Government says it is legal? What then? That's what pisses me off.

Now, if I ask the guy at the Registry of Motor Vehicles for advice on my taxes, and he's wrong, that was stupid of me.

The almost equivalent part here was that the telecoms relied on legal advice of the party that had the most to gain by "lying" to them about whether it was legal and therefore probably should have been at the very least told "hold on, while we get a court to tell us if this is legal." There's even a secret court they could have gone to if they wanted. Instead, they accepted that the govt lawyers were telling them the truth ... and they obviously weren't so that was stupid of them. I want them to face possible consequences for this. Possible because it is always possible that a jury trial under suit would find them to be not guilty.

Guy in a suit walks up to you, tells you to shoot your neighbor in the head, and hands you a letter on DoJ stationery telling you it is legal for you to shoot your neighbor in the head....

"I was just following orders" is not exculpatory in a court martial; is it really acceptable in the civilian courts?

This is a pretty closely defined situation, I think. FISA doesn't say that you can't be prosecuted for murder in that situation, I don't think.

I can see the point of the scenarios about government officials telling people it's legal to do things that are patently illegal, but the scenario also gets silly if you push it in the other direction. Suppose I work for a company that has a privacy policy that states that they won't give out customer information without a warrant. Police officer (or, at least someone in a damn good imitation of an officer's uniform) shows up at my office with a document that states that it's a warrant, has a signature claiming to be from a judge.

Should it be my fault if I give the office the information he claims to have a warrant for? If so, how much checking am I supposed to do? And, if I do too much checking, do I become liable for obstruction of justice?

Aren't subpeonas challengable? ie - if someone shows up, with a subpeona, you don't have to comply immediately, you can tell them your lawyers may want to challenge this and "hold the heck up." You can then take it to court. If it isn't a valid subpeona, you'd find out then. Maybe.

Warrants ... I have no idea. God that's scary.

"I need to call the lawyers" is certainly what I'd say if I was ever involved in the scenario I cited, but it certainly gets complicated if/when the situation starts involving stopping the police from doing something that they feel they have authority to do.

Just remember that once you have the evidence, it doesn't mean you can act on it. The court system has thrown out numerous domestic wiretaps because they bypassed the window in which they could work without court approval.

I'm personally against the "government is bad and stupid" line of thought here. (For obvious reasons, since I work alongside a lot of people who are on the front lines of this debate, and have heard stories that would make even the most jaded and cynical proud). Abuse of power and over-reaching does happen, but is clamped down on extremely tightly (it's amazing how many libertarians are in the ranks).

The court system works (even in secret), especially when it's a US Citizen involved.