The NSA's Day in Court?
The act also provides civil penalties for its violation, but in order to get them you have to show that your phone was tapped in violation of the law—and the NSA has, not surprisingly, declined to make public the list of tapped phones. I suggested a possible way around that problem, but so far nobody I know of has tried it, and it might well not work.
The latest story on arguably illegal acts by the NSA—obtaining information from phone companies in apparent violation of the Communications Act—may provide a solution. If the news stories are correct, it sounds as though all customers of at least two of the major phone companies have claims for damages under the act. While such a suit would not bear directly on the NSA interceptions revealed earlier, it would raise, and hopefully settle, the same legal issues. So far as I can tell, the defense would have to argue either that the Communications Act was implicitly amended by the congressional authorization of the use of force or that Congress cannot restrict the President in his war making activities—the two arguments offered in defense of wiretapping in violation of FISA. If the Court rejects those arguments, as I would hope it would, that raises serious problems for NSA and the Administration.