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Can You Sue The NSA?

by Bill Rounds Esq. on August 31, 2013

Reading time: 8 – 12 minutes

Lawsuits are blunt instruments for protecting rights, but sometimes they are the tool you need. Lawsuits over the NSA spying programs have multiplied over the past several weeks, spurred in large part by the numerous revelations about the existence and extent of the US government spying program targeting citizens. You may even be wondering if you have been a victim and if you are, whether or not you can do something about it. Can you sue the NSA for spying on you?

To answer this question, we will look at some of the Constitutional legal grounds that some lawsuits are invoking, what the courts have ruled in the past on these issues, what arguments could be successful, and whether you think you should talk to a lawyer about your specific case.

So far, there are few legal precedents decided on the exact facts of the NSA spying program as we now know them since the facts have been hidden from even the judges deciding the cases. Most lawsuits will be a case of first impression in each jurisdiction, for now.

Where Will A Lawsuit Against The NSA Be Brought?

Lawsuits against the NSA will be brought in federal courts in almost any jurisdiction in the U.S. because the responsible parties are probably federal agencies and officials like the NSA, Attorney General of the U.S., etc. Also, they are likely to concern exclusively federal law, like the USA PATRIOT Act. It won’t matter where you live in the US, if you are thinking of suing the NSA, the court will not be far from home.

Standing

Standing is one of the first important legal hurdles that will have to be overcome to be successful. Standing means that you can actually sue. For example, if the mailman punches your neighbor in the nose, your neighbor is the one who was injured, not you, so it is your neighbor who can sue the mailman, not you.

In the context of the NSA spying on citizens, you will have to show that you have actually been spied on. In a previous case, filed long before there had been any revelation of the details of the NSA programs spying on citizens, a court ruled that the plaintiffs did not have standing because they could not prove that they had in fact been spied on. Setting aside the ridiculous reason why they could not prove that they were actually harmed, the recent revelations and admissions by government officials have made the fact of spying public knowledge.  Standing will be much easier to prove. One judge has already ruled on this issue.

At first, Verizon customers probably have the strongest argument for standing because of the release of a FISC order directing the surveillance of all Verizon customers.  However, since that release, it has become known that anyone who uses the internet, cell phones, or email are likely to be victims of domestic spying.  You will need to speak with a lawyer about your specific circumstances.

First Amendment Freedom of Association and Assembly

The right to peaceably assemble is explicitly stated in the First Amendment to the Constitution. This right usually applies to the right to gather together. Improper restrictions, even some forms of indirect discouragement of assembly, even before the actual assembly occurs, have been held to violate this right. Freedom to assemble protects a group’s autonomy, composition and existence and the disclosure of membership in in a group can violate the freedom to assemble.

Not mentioned explicitly in the text of the constitution, the freedom of association has been recognized in case law as a right protected by the first amendment. The law essentially recognizes that individuals have a right to associate in groups, especially in groups that gather for advocacy of a belief or idea. The law also recognizes that people have the right to privacy in their associations. Actions that limit those associations, possibly even actions that chill the willingness to associate in these groups, have been held to violate this right and could likely be the basis for a successful claim.

One lawsuit in particular, First Unitarian Church of Los Angeles v. NSA, is focused primarily on the freedom of association. Each plaintiff is a group or organization, from a very diverse political spectrum, which claims that the NSA spying has affected the freedom of members of these groups to associate. These plaintiffs each fall squarely within the rights that the law has already recognized. As such, these organizations, and others, probably have the best chance of success in a lawsuit based on the freedom of association.

Many people feel that the law as it stands does not recognize the full breadth of the rights that individuals have. Many feel that individuals have a right to associate with anyone they want, for any lawful purpose, regardless of whether they are doing so for the purpose of advancing any political speech or idea. The right to keep such associations private would then follow from this freedom. The NSA spying violates the privacy of individuals associating together. But, this expansive view of the right has not yet been recognized by the law. It is possible that the law could be logically extended to recognize this right, but it will be more of an uphill battle than the case of a political organization such as those in the First Unitarian case.

Fourth Amendment Freedom from Unreasonable Search and Seizure

The Fourth Amendment to the Constitution protects people from having their personal papers and things unreasonably searched where they have a reasonable expectation of privacy. With some exceptions, a reasonable search usually requires a decision by a neutral third party that the target of a search is specifically identified and a clear statement of what the government is looking for.

The Supreme Court has recently indicated that the persistent and complete surveillance of even public activity (driving on public streets) is a search and thus requires the protection of warrants and the full legal process before the government can engage in surveillance. The complete and total monitoring of all Americans phone, internet and email activity without any individualized suspicion of crime and without a clearly identifying what is being looked for is likely to violate the Fourth Amendment.

There is one principle called the third party doctrine which claims that if you have shared information with a third party, you no longer have an expectation of privacy in that information. This doctrine is becoming more an more out of touch with the reality that individuals share their private activities with numerous third party service providers yet still expect those activities to be kept private. A cell phone call to a spouse and an email to a lawyer both necessarily use numerous third party providers but are expected by almost everyone to be private activities. Many scholars believe the third party doctrine is ripe for modification.

If you have never been named as the subject of an investigation and your internet, call phone, or email communications have been intercepted in any way, you likely have had your Fourth Amendment rights violated.

Fifth Amendment Due Process

The Fifth Amendment guarantees that individuals will not be deprived of life, liberty, or property, without due process of law. The top secret FISC court which issues orders for massive secret surveillance has not published its decisions for public review. Thus, this court has established a body of law and precedent which is unknown to the people who are subject to the law and who may have their liberty deprived by its operation. It is likely that the NSA spying is a violation of the Fifth Amendment as well.

Should You Talk To A Lawyer About Suing The NSA?

Each individual will have very specific facts that apply to them.  These are only a few of the legal issues that may apply in a case.  Check out this recently filed brief by the ACLU for the legal arguments relating to their organization.  You will need to talk to a lawyer about the specific facts and law in your case to determine if it is in your best interest to sue the NSA.

If you want to take a proactive approach to protecting as much of your private electronic data as possible, check out the information at HowToVanish.com .

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2 comments

ABOUT THE AUTHOR: Bill Rounds, Esq. is a California attorney. He holds a degree in Accounting from the University of Utah and a law degree from California Western School of Law. He practices civil litigation, domestic and foreign business entity formation and transactions, criminal defense and privacy law. He is a strong advocate of personal and financial freedom and civil liberties. This is merely one article of 123 by .
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{ 2 comments… read them below or add one }

1 Sam September 6, 2013 at 5:35 pm

Trace,

Please give us your take on today’s NY Times front page headline story that the NSA has the ability to actually penetrate and break into the many encryption, VPN, and other “privacy and anatomizing” tools out there by using “super-computers” and “advanced” software techniques effectively making such “privacy” services obsolete and ineffective at truly protecting one’s private data? They claim even the super advanced encryption and other high security techniques used by banks, etc. are susceptible to their peering eyes!

True? False? Perhaps just trying to discourage people from bothering to use such tools?

What do you think?

Thanks for your thoughts.

-Sam

2 Trace Mayer, J.D. September 10, 2013 at 1:58 pm

Sam,

I think it is probably true with regards to some areas but puffing with regards to other areas. Proxy piercing and other types of attacks can be used to pierce the privacy protection granted by some tools. But as far as compromising the encryption protocols; I doubt that is the case. The NSA has largely taken the stance of not using a cipher that they can compromise themselves. So, unless they are retracted on this policy which is highly unlikely because it poses such grave security risks to do so then I doubt the ciphers have been cracked. And since they are open-source it is highly unlikely the academic community has been unable to find a vulnerability while the NSA has been able to.

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