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TRACCI: Stop the litigation gravy train
How NSA’s tech payouts do harm
Former National Security Agency contractor Edward Snowden’s illegal disclosures have renewed debate about intelligence and law enforcement efforts to protect the United States from international threats while safeguarding civil liberties at home. While Mr. Snowden must be held fully accountable for his actions, the spirited discussions his leaks have generated are hallmarks of vibrant discourse in a free society.
Mr. Snowden’s revelations also have set into motion a cavalcade of civil litigation that does not advance the public or national interest. A growing procession of plaintiffs are seeking massive payouts from technology companies that complied with compulsory requests for nonprotected data pursuant to a statutorily authorized, carefully tailored, lawfully conducted national security program.
Less than a week after The Guardian published a classified Foreign Intelligence Surveillance Court order for telephony metadata, Freedom Watch filed a $3 billion class-action suit against a leading telephone service provider for “enabling” the government’s “outrageous” surveillance program. In its suit, Freedom Watch contends the monitoring program violates “rights to privacy, seclusion, freedom of expression, due process and other rights.” The suit also curiously alleges that the monitoring program — unknown to plaintiffs until it was disclosed — intentionally inflicted emotional distress and physical harm upon members of the class action. Seemingly oblivious to the goals of the U.S. intelligence and law enforcement communities, Freedom Watch’s suit claims that “(t)he only purpose of this outrageous and illegal conduct is to intimidate American citizens and keep them from challenging a tyrannical administration and government.” A day later, Freedom Watch filed a $20 billion class-action suit against technology companies and executives alleged to have participated in the NSA’s Prism program.
Utilizing a grab bag of similar catchphases, the American Civil Liberties Union filed suit against Verizon for complying with a “dragnet surveillance” program that violates the First and Fourth amendments. The suit claims that government collection of constitutionally unprotected metadata infringe upon the ACLU’s “twin liberties of free expression and free association.” According to the ACLU, government monitoring might discourage potential clients from seeking representation on matters ranging from “reproductive services, racial discrimination, the rights of immigrants, national security and more.” This claim is equivalent to asserting that traffic enforcement on highways in the vicinity of ACLU offices may discourage potential clients from seeking legal guidance in violation of their perceived constitutional rights.
Not content with filing suit in district court, Sen. Rand Paul, Kentucky Republican, entered the fray by proclaiming: “I’m going to be seeing if I can challenge this at the Supreme Court level. I’m going to be asking all the Internet providers and all of the phone companies, ask your customers to join me in a class-action lawsuit. If we get 10 million Americans saying ‘We don’t want our phone records looked at,’ then somebody will wake up and say things will change in Washington.”
The legal bases upon plaintiffs’ claims rest range from faulty to frivolous. Passed with bipartisan congressional majorities — including the support of then-Sen. Barack Obama — the Foreign Intelligence Surveillance Act Amendments Act of 2008 plainly precludes legal action against “any electronic communication service provider for providing any information, facilities or assistance” with lawfully issued surveillance programs. Civil litigants have neither shown nor alleged that the court order upon which communications firms are alleged to have complied was not lawfully issued. While the percentage of applications approved by the surveillance court has occasioned excited speculation, this number reflects the legal discipline of applications rather than any alleged deficit of judicial scrutiny.
Moreover, Freedom Watch, the ACLU, Mr. Paul and others largely ignore the fact the court metadata order they challenge permitted companies to obtain legal advice and expressly excluded “the substantive content of any communication or the name, address, or financial information of a subscriber or customer.” In a 1979 decision, the Supreme Court held no reasonable expectation of privacy in voluntarily dialed telephone numbers. Authored by Justice Harry Blackmun and joined by Justice John Paul Stevens among others, the decision in Smith v. Maryland is fatal to the only cognizable constitutional claim presented by plaintiffs.
While lawsuits against U.S. technology companies have little chance of success on the merits, they do share other common objectives. First, negative publicity generated by mere allegations of misconduct places pressure on technology companies to offer monetary settlements in the shadow of in terrorem legal action. Second, lawsuits seek to compel technology companies to lobby agencies to abandon or curtail lawful and necessary collection efforts. Third, political criticisms framed as legal demands are intended to influence public opinion and force policymakers to renounce or terminate vital programs implemented pursuant to national security statutes approved and overseen by Congress. Courts must not allow themselves to be commandeered for nakedly nonlegal purposes.
Foreign governments have also joined the action. Reprising efforts to punish American technology companies through unequal application of the antitrust laws, European regulators are now exploiting Mr. Snowden’s disclosures to advance European companies at the expense of their U.S.-based competitors. The European Union privacy regulator stated: “Aspects of U.S. law under which companies can be compelled to provide information to U.S. agencies potentially conflict with European data-protection law, including the U.K.’s own Data Protection Act.” Germany’s federal data-protection commissioner expressed concern about data obtained by “U.S. or third party-companies [that] public authorities want to surveil.” French data group CNIL declared Google’s alleged participation in Prism a violation of French law, while Spain’s privacy regulator AEPD plans to impose fines on the search giant. The government of Brazil recently dipped into the legal current and others are likely to follow.
Congress has broad authority to conduct oversight of the laws it enacts, and reserves discretion to amend them. However, Congress and the administration must publicly oppose shakedowns of U.S. tech firms for several reasons. First, companies alleged to have participated in metadata-collection efforts are legally required to comply with lawful court orders. Punishing compliance is both unfair and destructive to the law Congress enacted. Second, Congress provided unambiguous, bipartisan legal protection to communications service providers that help defend the United States. Given the nature of modern communications, the United States is largely blind to foreign threats without private cooperation. Third, cooperating companies deserve praise rather than condemnation for assisting lawful efforts to detect threats to the United States and its allies. Finally, U.S. authorities must strongly oppose efforts by foreign governments — many of which benefit from timely information derived from lawful U.S. intelligence programs — to use Mr. Snowden’s leaks as a pretext to advance their economic interests at the expense of the American technology industry and the jobs it supports.
Questions concerning the reach of U.S. intelligence programs should be resolved in the court of public opinion and Congress, not in courts of law. The litigation gravy train against American technology companies has been boarded. More passengers are likely to arrive soon. While Congress and the administration might not agree on much, they do share an obligation to stop this litigation train before it further damages U.S. economic and national security interests.
Robert N. Tracci served as counsel, chief legislative counsel and parliamentarian to the House Judiciary Committee from 2000 to 2006, as deputy assistant to the U.S. attorney general from 2007 to 2008, and as special assistant U.S. attorney from 2009 to 2012.
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