Our civil liberties lose this round
It’s hard enough dealing with individual businesses or government agencies. It’s a whole other thing when the public and private sectors team up against consumers.
There’s been a lot of talk lately about whether companies that do the government’s bidding or ostensibly act on behalf of government officials should be entitled to immunity from prosecution for any wrongdoing.
President Bush has been pushing hard to give the likes of AT&T; and Verizon immunity for their roles in any past and future eavesdropping on the American people. Lawmakers left the matter hanging when they went on recess last week.
On Tuesday, the Supreme Court declined without comment to hear a case challenging the legality of Bush’s warrantless spying program, in which telecom companies shared customers’ calls and e-mails with the National Security Agency.
The American Civil Liberties Union had argued that the program violated people’s privacy, but it was unable to provide specific examples because the administration won’t divulge details of its activities.
I don’t think I’m reaching when I say that most consumers would prefer that a court order or two be obtained before telecom companies hand over their personal communications to the government.
But when it comes to public-private canoodling, the most egregious case I’ve seen recently involved a San Clemente company, American Corrective Counseling Services, that worked with public prosecutors to go after people who bounced checks.
In contacting consumers, ACCS represented itself as actually being the district attorney’s office, even though the cases involved may not have been vetted in advance by an actual prosecutor.
In return for its efforts, ACCS typically would be entitled to a $100 fee and as much as 60% of any fines paid.
ACCS represents about 200 prosecutors nationwide. According to the company’s website, these include the district attorneys of Los Angeles, Orange, Riverside and Santa Barbara counties.
This month a federal appeals court ruled that ACCS could be sued over alleged violations of debt-collection regulations. The company had argued that it should be shielded from such lawsuits because it enjoyed the same “sovereign immunity” as a government entity.
Sovereign immunity is a legal doctrine, rooted in early British law, that basically prevents anyone from suing a government entity without its say-so. U.S. authorities frequently waive the right so that lawsuits can proceed.
The court ruling has bearing on similar examples of public-private partnerships, such as companies taking over prisons or the widespread use of security firms in Iraq.
“This decision was the most forceful decision yet rejecting that sovereign immunity applies to private corporations,” said Deepak Gupta, a staff attorney at watchdog group Public Citizen, which argued in court that ACCS’ tactics violated consumers’ legal protections.
Highfalutin legal principles are one thing. Then there’s the view from the trenches.
Lois Artz, a 72-year-old resident of the Northern California city of Petaluma, received what looked like a very serious letter from the Sonoma County district attorney’s office in November 2005.
“The Sonoma County District Attorney’s Office has received a CRIME REPORT alleging you have violated Penal Code 476(a) of the California State Statute: Issuing a Worthless Check,” the letter warned.
“A conviction under this statute is punishable by up to one (1) year in county jail, or in a state prison, and up to $1,000 in fines,” it said.
The letter advised Artz, a former Bank of America branch manager, to enroll in a “bad check restitution program” and to pay $196.62 in fines.
“When I saw that letter, I almost fainted,” she told me. “I was beside myself.”
Her crime, Artz said, was writing a check for a $26.62 carton of smokes and not having sufficient funds in her bank account to cover it. Artz said she’d been distracted caring for her daughter, who has breast cancer, but she knows that’s no excuse.
What troubled her was that her case seemingly was elevated with alarming speed to the level of criminal prosecution without anyone trying to work things out with her.
“I was humiliated and terrified,” Artz said. “I felt like any time I turned around, there would be somebody there telling me to come with them.”
According to court documents, ACCS went after more than 100,000 Californians in 2001, the latest year for which data are available. And most if not all those people believed they’d been contacted by a government agency, not a private company.
Kirk Barrus, senior vice president of ACCS, denied that the company acts independently when it chases down suspected check scofflaws.
“We operate under the total control of the district attorney,” he said. “We’re basically a secretarial service, and therefore should carry the district attorney’s immunity.
“They’re not letters from a private company,” Barrus insisted. “They’re letters from a district attorney.”
Well, no. They’re letters from a private company that says it’s acting on the government’s behalf. And that company has a powerful financial incentive to go after as many people as it can.
Moreover, prosecutors have a strong incentive to look the other way as ACCS does its thing. The company handles all costs and labor, and it cuts in the district attorney’s office for any cash recovered. For a prosecutor, ACCS’ activities are pure gravy.
Sharon Matsumoto, an assistant district attorney for Los Angeles County, characterized the letters sent by ACCS as “notifications” to suspected bad-check writers that they can avoid criminal proceedings by ponying up some cash.
She said criminal proceedings have not begun before the letters are sent out and that it’s ACCS, not government lawyers, determining who gets a letter.
Last year, ACCS’ efforts resulted in about $249,000 in revenue for the L.A. County prosecutor’s office and a similar amount for ACCS, Matsumoto said.
ACCS has yet to decide whether it will appeal this month’s court ruling rejecting the company’s argument for sovereign immunity.
All things considered, it would be a good thing for ACCS and the telecom companies to have their day in court. Whether or not they did anything wrong, it’s important that there be some measure of accountability -- and transparency -- when businesses work hand in glove with the government.
People will cooperate when national security is at stake, just as most of us will try to make good if a check bounces.
But we don’t need to be bullied in the process by the powers that be.
Consumer Confidential runs Wednesdays and Sundays. Send your tips or feedback to firstname.lastname@example.org.