State-Business Cooperation: Then and Now

The critically important idea that the law applies to the king, enshrined in the Magna Carta was, until very recently, enforced by American courts.  Consider the case of one, Ms. Roberts, whose safe deposit box was robbed by the police:

Prosecutors and cops are notoriously difficult to sue, so Ms. Roberts sued the safe company, pointing to the contract the company had signed when it offered its safe deposit boxes for rent. One provision of the contract provided that no person would be allowed inside the vaults for the purpose of opening any safe except the renter, or his substitute. Another clause mandated that two persons would never be allowed to enter the vault at the same time, unless personally known to one of the bank’s officers. The highest court in New York held that the safe-deposit company was liable for the property taken from the vault by officers because the company failed to resist the taking of property not described in the search warrant.

Although the high court did not hold that the safe company employees were legally obligated to resist the police by force, the court stated that the company manager should have “ma[d]e such opposition to the trespass as they could and should have made under the circumstances.” For example, the bank manager should have demanded to scrutinize the search warrant, notified Ms. Roberts immediately, monitored the cops’ search of the safe, and forbade the cops’ taking of any items not listed in the search warrant.

Not only were the police out of line in dismissing the limitations imposed by the warrant, the safe-deposit company did not receive immunity merely because government agents committed the trespass and theft.

Something has changed radically between 1890 and now.  Today telecom companies—not merely standing by in apathetic passivity—actively conspire with the government in warrantless searches of our electronic communication.  And then these telecom companies are protected from prosecution by an act of Congress.

The Bush administration and now the Obama administration have neither admitted nor denied the allegations. Instead, they have declared the issue a state secret — one that would undermine the nation’s national security if exposed.

U.S. District Judge Vaughn Walker, the San Francisco judge presiding over the litigation, did not agree. The judge ruled two years ago the allegations against the nation’s telcos could proceed.

But a major obstacle stopped the case dead in its tracks, before the merits of the allegations could be litigated, and before the judge could consider ordering a halt to the alleged dragnet.

That roadblock was an act of Congress, one voted for by Sen. Barack Obama of Illinois and then signed by President George W. Bush in July 2008. The legislation handed the telcos retroactive immunity from being sued for participating in the alleged program. Judge Walker tossed the case.

It is noteworthy that this brazen violation of our rights was supported by both Bush and Obama (it is increasingly difficult to detect any substantive difference between the two men).

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