Almost Every Telephone Customer In North America

By Cernig

Reading Michael Goldfarb's gloating yesterday over the imminent Dem capitulation on FISA, I was struck by a curious phrase:

...the industry now faces as much as $7.243 trillion in liability, as practically every telephone customer in North America is to be considered a victim...

He goes on to call any lawsuits that established such a liability both "frivolous" and a "threat to national security." It seems to me that they can't be both, though. If they're frivilous then the only liability is the cost of litigation, swiftly halted by the invocation of state secrecy, and the threat to national security is nil.

But what about that throwaway claim that almost every telephone user in North America - not just the U.S. - would have not just a chance at litigation but a real chance at establishing liability, in amounts sufficient to challenge health care or the Iraq occupation as a driver of the national debt? We're talking about a $20 million award per person here. Awards of that scale would have to follow some serious infringements of personal rights and would explain entirely why the Bush administration doesn't want to indemnify the telecoms.

Is Goldfarb talking out his ass here or has he just inadvertently spilled some insider beans? Well - he's a pretty well connected insider himself, isn't he? That's meant to be where he derives his authority for his smirking pose.

And then there's this, from Kevin Drum, who points to a WaPo quote of assistant attorney general for national security Kenneth Wainstein:

At the breakfast yesterday, Wainstein highlighted a different problem with the current FISA law than other administration officials have emphasized....In response to a question at the meeting by David Kris, a former federal prosecutor and a FISA expert, Wainstein said FISA's current strictures did not cover strictly foreign wire and radio communications, even if acquired in the United States. The real concern, he said, is primarily e-mail, because "essentially you don't know where the recipient is going to be" and so you would not know in advance whether the communication is entirely outside the United States.

Kevin writes:

But if there's no way to know in advance where the recipient of an email is going to be, then the Bush administration is basically asking for the ability to monitor all email communications that pass through a U.S. switch. And they interpret the text of PAA as giving them that authority. Right?

If that's what has been happening all along, then that entirely explains Goldfarb's claim.