[IP] retroactive laws

[David Farber <dave@farber.net>]

________________________________________
From: Robert Atkinson [rca53@columbia.edu]
Sent: Monday, February 18, 2008 6:05 PM
To: David Farber
Subject: Re: [IP] An EFF point of view on   Does US Constitution SPECIFICALLY PROHBITS the passing of retroactive laws

What was disturbing in the the post that started this thread is the notion
that supporting or seeking legislation that is found to be unconstitutional
is somehow an impeachable offense. That idea is anti-constitution and would
suppress the vigorous debate sought by the Constitution. What about "free
speech"?

Bob


On 2/18/08 3:35 PM, "David Farber" <dave@farber.net> wrote:

>
> ________________________________________
> From: Cindy Cohn [cindy@eff.org]
> Sent: Monday, February 18, 2008 2:02 PM
> To: David Farber
> Cc: ip; Peter Swire
> Subject: Re: [IP] Re:    Does US Constitution SPECIFICALLY PROHBITS the
> passing of retroactive laws
>
> Hi Peter (and Dave),
>
> Sorry to sound like a litigator, but there are indeed several
> "plausible" arguments that the retroactive immunity provisions are
> unconstitutional, contrary to Peter's assertion. There are also
> several arguments that the prospective immunity in the bill is
> unconstitutional too -- people seem to forget that the bill has both
> immunities and in my opinion the second is ultimately more frightening.
>
> EFF certainly will be making those plausible arguments should the
> bill pass. There are serious due process and separation of powers
> problems with the bill, which effectively grants the Executive the
> power to demand that pending court cases come out a particular way
> that favors the Executive.  This is an extraordinary thing to do,
> especially when the constitutional claims of millions of Americans
> are at issue.
>
> While it's not really appropriate for me to lay all of the arguments
> out here in this public forum (the government and telcos aren't
> showing us their arguments yet either), I think you'll be interested
> to see our briefing on the issue, should we have to present it.  I
> urge you to keep an open mind until then.
>
> While it would certainly be better for the courts to be allowed to do
> their job with Congressional interference at this point, I don't want
> Dave's readers to think that if the bill passes, the cases, along
> with their privacy and constitutional rights, will simply evaporate.
>
> Also, for those interested in responses to most of the specious
> arguments being raised in the immunity fight in DC (I can't say "all"
> because it's hard to keep up with all of the misleading things being
> thrown around), EFF has a document where we've gathered most of them
> together in a little chart:
>
> http://www.eff.org/files/nsa/3keys.pdf
>
> Also, on this page: http://www.eff.org/nsa
>
> you'll find a series of documents about the immunity fight, including
> a listing of the laws that the telcos violated and statements from
> the whistleblower Mark Klein and expert Brian Reid about what the
> suits are exactly about, which has often been missing from the debate
> in DC. For instance, one thing that you wouldn't know from the pro-
> immunity forces is that the suits aren't about targeted surveillance
> of individuals talking to Al Qaeda. The suits against the carriers,
> now largely AT&T, Verizon/MCI and Sprint, are about untargeted,
> blanket surveillance of ordinary Americans in their domestic
> communications and the wholesale handing over of communications
> records by the telcos.
>
> Cindy
>
> On Feb 18, 2008, at 4:10 AM, David Farber wrote:
>
>>
>> ________________________________________
>> From: Peter Swire [peter@peterswire.net]
>> Sent: Sunday, February 17, 2008 4:06 PM
>> To: David Farber
>> Subject: RE: Does US Constitution SPECIFICALLY PROHBITS the passing
>> of retroactive laws
>>
>> Dave:
>>
>> Sorry to sound like a law professor, but this post was incorrect.
>> I think it is bad policy to have retroactive immunity, but I
>> haven't seen any plausible argument that such immunity is
>> unconstitutional.
>>
>> 1.  The Constitution does prohibit ex post facto laws.  That means
>> that Congress cannot make something *criminal* that was not
>> criminal at the time of the action.  So it would be
>> unconstitutional if Congress now tried to make it a crime for
>> wiretaps that happened earlier.
>>
>> 2.  Another provision in the Constitution about retroactive laws is
>> the Contracts Clause.  That prohibits states from canceling
>> contracts that they earlier entered into.  (The Supreme Court has
>> held that the Due Process Clause similarly prevent Congress from
>> canceling statutes).  So it would be unconstitutional if a state or
>> federal government previously promised to pay the telcos, but now
>> tried to pass a law that said the payment wasn't due.
>>
>> 3.  By contrast, Congress and the states have at various times
>> changed the liability rules for cases that had not yet gone to
>> final judgment.  This has come up, for instance, in the various
>> tort reform statutes.  The legislature gets to state what the
>> liability (or no liability) rule is, and can change that rule with
>> respect to acts that have not been adjudicated yet in the courts.
>>
>> Peter
>>
>>
>> Prof. Peter P. Swire
>> C. William O'Neil Professor of Law
>>    Moritz College of Law
>>    The Ohio State University
>> Senior Fellow, Center for American Progress
>> (240) 994-4142, www.peterswire.net
>>
>>
>> -----Original Message-----
>> From: David Farber [mailto:dave@farber.net]
>> Sent: Sunday, February 17, 2008 3:09 PM
>> To: ip
>> Subject: [IP] Does US Constitution SPECIFICALLY PROHBITS the
>> passing of retroactive laws
>>
>>
>> ________________________________________
>> From: Gordon Peterson [gep2@terabites.com]
>> Sent: Sunday, February 17, 2008 2:34 PM
>> To: David Farber
>> Subject: Re: [IP] Re:     BEST LAW MONAY CAN BUY --  Senate votes
>> Telecom immunity
>>
>> A recent post I read on the subject pointed out that the US
>> Constitution
>> SPECIFICALLY PROHBITS the passing of retroactive laws... which means
>> that for the pResident to press for, or for Congress to pass, such
>> legislation would be a dereliction of their duty and their sworn
>> oath of
>> office... and thus, in fact, itself (another!) impeachable offense.
>>
>> --
>>
>> Gordon Peterson II
>> http://personal.terabites.com
>> 1977-2007:  Thirty year anniversary of local area networking
>>
>> -------------------------------------------
>>
>> -------------------------------------------
>>
>
>
> ********************************************************
> Cindy Cohn                              ---- Cindy@eff.org
> Legal Director                  ---- www.eff.org
> Electronic Frontier Foundation
> 454 Shotwell Street
> San Francisco, CA 94110
> (415) 436-9333 x108
> (415) 436-9993 (fax)
>
>
>
> -------------------------------------------


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