Hot Docs: Two Cases Stemming from Government Surveillance Efforts

This new Consolidated Complaint of all actions against AT&T is a great resource for those following the numerous lawsuits against the telecommunications giant for giving the National Security Agency (NSA) access to customer information, records, and wiretapping.

The Consolidated Complaint walks through all of the key coverage and events, describes each class involved, and identifies all of the laws AT&T is alleged to have violated, including quotes of the relevant portions of the applicable statutes.

According to the complaint, "This case challenges the legality of Defendants’ participation in a secret and illegal government program to intercept and analyze vast quantities of Americans’ telephone communications and records, surveillance done without any statutorily authorized permission, customers’ knowledge or consent, or the authorization of a court, and in violation of federal electronic surveillance and telecommunications statutes, as well as the First and Fourth Amendments to the United States Constitution."
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On the subject of federal surveillance, also of interest is this court order In Re National Security Agency Telecommunications Records Litigation, dismissing the complaint of the Al-Haramain Islamic Foundation and its lawyers with leave to amend. The complaint had alleged that the NSA illegally targeted the Islamic charity for warrantless electronic surveillance of communications between the charity and its lawyers.

In its ruling granting the plaintiffs leave to amend, the court noted that:

Of special relevance to the court’s present inquiry, Congress included in the FISA bill a declaration that the FISA regime, together with the Omnibus Crime Control and Safe Streets Act of 1968 codified at chapter 119 of Title 18 of the United States Code, 18 USC §§ 2510-22 (“Title III”), were to be the “exclusive means” by which domestic electronic surveillance for national security purposes could be conducted. . . .This provision [ 18 USC § 2511(2)(f)] and its legislative history left no doubt that Congress intended to displace entirely the various warrantless wiretapping and surveillance programs undertaken by the executive branch and to leave no room for the president to undertake warrantless surveillance in the domestic sphere in the future.

But: "FISA makes little provision for notice to surveilled individuals except when the government chooses to disclose surveillance materials and the provisions that exist are easy for the government to avoid . . . In consequence, the cases are few and far between in which an individual ever learns of having been subject to electronic surveillance within FISA’s purview and therefore possibly having standing as an aggrieved party."

The Al-Haramain case is unique as the plaintiffs discovered the surveillance as a result of  "a small tear in the thick veil of secrecy behind which the government had been conducting its electronic surveillance activities" – an inadvertent disclosure by the government.

However, under the law, the plaintiffs are not allowed to use this document as evidence to establish their standing under FISA. The court is, nevertheless, giving the plaintiffs an opportunity to adequately allege their standing in an amended pleading.

One can only wonder – could the plaintiffs use the information obtained in the AT&T case to do so?