FISA: Money as Motivator

By February 29, 2008General

The Examiner’s Quin Hillyer reads the anti-surveillance class action lawsuit, Hepting v. AT&T, and finds the arguments thin, the claims outlandish:

It reads like the account of a vast fishing expedition in which the plaintiffs claim that any small minnow they catch is a veritable Moby Dick of a privacy invasion.

It claims the surveillance program “intercepts and analyzes the communications of millions of Americans” in an “illegal domestic spying program.” Never mind, of course, that the only way “millions” of Americans could be said to be affected is if they are said to have been subject to unlawful “search and seizure” just by having their phone numbers show up as tiny data bits among “4,000 terabytes (million megabytes)” on the same network that is monitored for the targeted foreign calls. This is hardly a real privacy violation.

Moreover, the suit defines the class of aggrieved citizens as “all individuals” who were customers of the phone company “at any time after September 2001” that the program was in effect. In this one suit, that class is identified as consisting of 24.6 million people. How all 24.6 million Americans could possibly be harmed by this program aimed at suspected foreign terrorists is a question perhaps best answered in the Twilight Zone.

The suit gets wilder still. Not only does it ask for at least $1,000 for each class member for each of two alleged types of violation, but on each of two other counts it asks the companies for at least $100 per alleged victim per day of violation — plus punitive damages and attorney’s expenses.

Do the math: The total potential payout by AT&T for the first two categories of alleged violations is $49.2 billion. Meanwhile, at $100 per day for each day of the four years at issue after 9/11, the total potential liability for each of the two latter counts is $3 trillion, 591 billion.

Defending against this kind of lawsuit abuse is time-consuming and expensive, but that’s the point. The activists want to undermine the legitimate surveillance of foreign communications through litigation, getting to the Administration through legal assaults on private companies.

Do read the lawsuit, by the way. It’s fevered and far-fetched.

Join the discussion 4 Comments

  • if the point of the posting is that the lawsuit is a n exaggerated try-on in terms of monetary damages, then you may have a point.
    However, the blunt reality is that the lawsuit is being filed because of a rather compelling amount of evidence that the telecomms companies acquiesced in the provision of information to the government in violation of the existing law (FISA) which permited wiretaps and electronic surveillance (both with a warrant and pre-emptively if a warrant was subsequently obtained).
    The assertion that “The activists want to undermine the legitimate surveillance of foreign communications through litigation” is intellectually dishonest, incoherent and contemptible. Without any supporting evidence or anything approaching an argument, it is an excellent example of empty sloganeering.
    I conclude by noting that in the 1997-1998 time period when President Clinton was being threatened with impeachment for allegedly lying about a blow-job, I heard numerous people engaging in all sorts of public hand-wringing about “the rule of law” and the President’s alleged inability to obey the law. Where are all of these people now that the administration is desperately asking for retroactive immunity for the telcos for law-breaking? Why have they been struck dumb?

  • Chris says:

    “How all 24.6 million Americans could possibly be harmed by this program aimed at suspected foreign terrorists is a question perhaps best answered in the Twilight Zone.”

    Welcome to the Twilight Zone. The program is, in reality, aimed at anyone and everyone whose phone calls, emails or other electronic communications are handled by AT&T and other major telecom companies. This surveillance may be taking place in the name of catching terrorists, but the government (with the telecoms’ help) has been tapping the private communications of all Americans. Click the link associated with this comment for the account of Mark Klein, the AT&T whistleblower who reported details of the government’s unfettered wiretap on all traffic (not just “suspected foreign terrorists”).

    The issue is not whether the government should be allowed to undergo this surveillance. In this case, the government ordered the telecom companies to carry out surveillance without oversight and without obtaining a court order, because they feared the request would be found illegal if they sought permission. Except for Qwest, the telecom companies failed to require the government to go through the proper channels, and this behavior must be punished. Rights organizations like the EFF and ACLU are not seeking financial gain here — these lawsuits are the only option left to compel companies to stand up to the government when the government tries to break the law and do an end-run around checks and balances. Broad surveillance that collects the domestic, private communications of ordinary Americans should not take place without proper oversight and the legal departments of telecom companies must be skeptical of requests to operate outside the law.

  • Tawny Pincus says:

    $1,000 for each class member for each of two alleged types of violation is the fine specified for law breakers by the FISA law. AT&T should abide by the law — now, there is a fevered far-fetched concept.

  • Paul Dirks says:

    The activists want to undermine the legitimate surveillance of foreign communications through litigation

    You not only have no basis for that statement, but it borders on slanderous. All the “activists” that I am familiar with are motivated by the desire that the traditional rule of law extend to the executive branch and that any needed modifications to the FISA law are provided for by the normal political process that the Constitution requres.

    The Bush administration’s brazen desregard for not only the FISA law but also the Presidential Records Act and his declared intention to ignore any other portion of any statute which purports to regulate his own behavior or freedom to act, is more than adequate motivation for anyone who cares to see that the Constitutional balance of power is maintained.

    The accusation that the EFF is motivated by either financial reward or the desire to inhibit intelligence collection is not only dishonest, but it undermines any legitimate arguments you would care to advance in defense of the current NSA program or the President’s conduct.

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