Free With Liberty and Justice for Some by Glenn Greenwald

orthodoxy. It is difficult indeed to find any media figure with a national platform in 2005 who was willing to even refer to Bush’s program as a “crime,” let alone call for legal accountability. The vast majority, with very few exceptions, affirmatively defended it.
    Critically, it was not only Bush and his aides who were implicated in this criminality, but also the nation’s telecom giants. In the 1970s, the Church Committee investigation revealed to Americans that domestic eavesdropping abuses by the government had been carried out with the cooperation of the telecommunications companies. AT&T, for example, had allowed the government unfettered access to its customers’ telephone calls for years, while Western Union had turned over to government agents all private telegrams that it transmitted throughout the 1950s and 1960s.
    To prevent such abuses, Congress, in addition to passing FISA, had enacted stringent new laws that specifically criminalized such conduct on the part of telecommunications firms. These laws imposed on telecom companies an absolute duty—under pain of severe criminal sanctions as well as civil liability—never to allow government access to their customers’ communications without a court warrant authorizing such spying.
    But a series of revelations in 2006 and 2007 left no doubt that most of the major telecoms had indeed allowed the Bush administration full access to their customers’ private telephone and e-mail communications without warrants of any kind. In other words, these telecoms, in collusion with the government’s illegal domestic spying program, had for years knowingly engaged in precisely the behavior that federal statutes prohibited and criminalized.
    In May 2006, USA Today reported that “the National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth.” One AT&T whistleblower, Mark Klein, disclosed that AT&T had gone out of its way to give the government access to all its customers’ communications. Specifically, Klein revealed in an interview, the company had “installed a fiber optic splitter at its facility at 611 Folsom Street in San Francisco that makes copies of all emails, web browsing, and other Internet traffic to and from AT&T customers, and provides those copies to the NSA.”
    At least four federal laws were clearly violated by the telecoms when they decided to cooperate with the Bush administration. FISA made it illegal for any party—not only government officials—to intentionally engage in electronic surveillance unless authorized by a court. The Wiretap Act prohibits any person from illegally intercepting, disclosing, or using, phone calls or electronic communications. The Communications Act prohibits carriers from unauthorized divulgence or publication of customer communications. And the Stored Communications Act makes it unlawful for carriers to disclose the contents of customers’ stored communications and to pass along records of such communications to a governmental entity without valid legal process.
    Notably, these laws had all been written with the active participation of the telecoms themselves. After the Church Committee investigation, when it became clear that Congress intended to set up a strict new legal regime regulating the telecoms’ interactions with the government, the telecoms had one principal demand: that their legal obligations be set forth as clearly as possible so that there would be no ambiguity regarding their duties. The congressional committees that drafted these statutes worked directly with the lawyers for the telecom giants to ensure clarity.
    In deference to the telecoms’ primary concern that their duties be clearly spelled out, and that they not end up suffering liability for accidental violations, Congress included broad immunity provisions in these statutes. Specifically, with regard to any criminal or civil