Friday, January 27, 2006

How to Sue the National Security Agency

In a recent post, I pointed out a problem with criminal law. Since the government controls criminal prosecution, crimes the government approves of are unlikely to get prosecuted. Although FISA provides a criminal penalty of up to five years and ten thousand dollars for making warrantless wiretaps under color of law or using the information they produce, there is little chance that either Bush or the NSA employees involved in making the wiretaps will end up in jail–even if the Supreme Court rejects the Administration's arguments for why what they were doing was legal.

In addition to criminal penalties, FISA also provides civil penalties–statutory damages of $1000 for each illegal wiretap. A civil suit does not have to be filed by the government.

In order to sue, you have to show that your phone was tapped. If you send a Freedom Of Information Act query to the NSA asking for a list, they will surely reply that they have good reason not to release the information, since they do not want terrorists to know whether or not they have been discovered.

As people from both the NSA and the FBI have made clear, not all of the leads generated by warrantless wiretaps panned out. Some turned out to be terrorists and are still being watched. Others turned out to have no connection with terrorism and have been crossed off the list. When you sent in your FOIA request, all you ask for are the names that have been crossed out.

The NSA might argue, somewhat less persuasively, that a list of everyone whose name has been crossed out will reveal too much about their procedures--how they are deciding whom to tap. If so, reduce your request. All you want are half--if they insist a quarter or a tenth--of the names crossed off. Surely the NSA can select them to obscure any pattern that the whole list might reveal.

Once you have names--at least one name will do--you can sue. If the court rules in your favor, you ask for the rest of the names. At that point you have established that the NSA is in violation of the law, with anyone responsible subject to criminal penalties, so hiding information in order to be able to continue the program should no longer be an issue.

Disclaimer: I am not an attorney. Several colleagues who are saw nothing inherently impossible about my proposal, but that is no guarantee that it would actually work.


Anonymous said...

As I see from my reading of FOIA ( it is not just "information" which can be requested and disclosed, but only existing records and documents containing this information. Also, FOIA explicitly exempts all classified documents from this disclosure requirement. It is obvious that all NSA records containing the crossed out names are secret and thus will not be disclosed under the FOIA. And as for your idea that NSA should carry out a separate research project in order to list the cressed out names, randomly choose some of them, and produce a new document recording these names - it seems to me that FOIA does not obligate federal agenices to satisfy such requests.

Anonymous said...

I've been thinking about the same issue. I have a slightly different solution. Do a class action suit on behalf of the class of injured persons, with proceeds to be kept in trust for the victims until such time as it is safe to declassify the documents. Although this would mean no one would get their money for a long time, the NSA would still be forced to cough it up and would be found in court to have violated the law.

The problem is, I'm not sure the rules of federal procedure allow a class action if there are no named plaintiffs at all....

Somena Woman said...

Hi David,

Wondering if you are taking requests on blogpost ideas... :)

You have written from time to time about adoption and how adoption laws as currently written appear to almost be a form of cruelty to children in some cases.

I have some thoughts I would like to send to you - and some questions I would like to ask, about the economics of adoption law, and also would solicit your interest in being interviewed briefly in a documentary being filmed on this very subject.

I know the answer ... in a libertarian society there would be no need for or demand for a black-market of babies...

But we arne't living in a Libertarian world, and I guess what I am looking for is something that deal with the immediate problem of lawyers and "adoption agencies" who are charging adoptive parents mini-fottunes, and as such the many family's who would be good and grest parents wont be able to adopt....

Then there is the issue of 'open adoption" which is more and more fraudulently being used as a promise to bithmothers to get them to "close" on the deal, and thus far, none of these "open adoption" contracts has any weight or validity in law... or is enforceable. I guess you can imagine whats' happened in a situation like this - where "professional" are regularly and legally able to advise thier clients to commit fraud.


Patrick Sullivan said...

It would be seem to be safe to conclude that resorting to some scheme along these lines is necessary because there is no evidence of any innocent party being harmed by the NSA program.

David Friedman said...

Roland comments that such a scheme is necessary because there is no evidence of any innocent party being harmed by what NSA is doing.

The obvious response is that since NSA isn't telling people that their phones have been tapped, it's hard to know who, if anyone, is harmed.

The slightly less obvious response is that FISA provides statutory damages for warrantless wiretaps. The point of statutory damages is that you don't have to prove you have been harmed--the activity is illegal, and the statutory damages are the punishment for the offender and the reward for the person who sues.

Anonymous said...

Take a look at this. The Electronic Fronteir Foundation is suing AT&T for complying with the NSA. That is another way of going about it.

Anonymous said...

The EFF link:

Anonymous said...

>there is no evidence of any innocent party being harmed by the NSA program.

And there was no evidence of anyone being harmed by the KGB's programs, as far as Ivan knew. But supposedly our society is different.