Can Customers Sue Over NSA Surveillance?

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Last week's twin national security revelations -- that the NSA has a top-secret court order requiring Verizon to turn over data on millions of users daily, and also runs a classified program called PRISM mining data from major Internet companies -- continue to set the news agenda. The impact on the companies themselves, however, has so far been limited. Verizon's stock actually rose after the first bombshell, and none of the tech firms connected to PRISM saw their share prices suffer the following day.

But even if Wall Street shrugged off companies' collaboration with widespread government surveillance, Americans in general are not so untroubled. According to a new Pew study, "a substantial minority -- 41% -- say it is unacceptable" for the government to investigate terrorism through mass collection of telephone records; 56 percent approve. When it comes to the Internet, Americans are even more wary of snooping: "45% say the government should be able to 'monitor everyone's email and other online activities if officials say this might prevent future terrorist attacks,' " while 52 percent are opposed. That equals a lot of disgruntled users of Gmail, Facebook, Skype, etc.

One lawmaker has announced an intention to challenge the surveillance in court. Kentucky Senator Rand Paul told Fox News that the government's sweeping collection of data is akin to the general warrants the country's founders considered so objectionable and should be taken up at "the Supreme Court level." The NSA is not targeting suspected terrorists and those they communicate with, Paul said, but rather "trolling through billions of phone records." He plans to appeal to consumers to fight back:
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.Such an effort would be broadly supported by Americans, he asserted, adding, "if you talk to young people who use computers on a daily basis, they're absolutely with me."

In fact, there's already at least one class-action lawsuit related to the latest NSA disclosures. Larry Klayman, a Reagan-era federal prosecutor and founder of the groups Freedom Watch and Judicial Watch, has filed suit against the president, the NSA, Eric Holder and Verizon, according to TorrentFreak. (Interestingly, given his current suit over telephone surveillance, Klayman was one of the government trial lawyers who brought the case to break up AT&T.) Joining Klayman are Charles and Mary Ann Strange, the parents of a Navy SEAL Team 6 member killed in Afghanistan. The plaintiffs are suing over violations of privacy and constitutional rights, but their action has an obvious political context: Klayman is a longtime critic of Obama, having previously empaneled a "citizens grand jury" seeking indictments against the president, and the Stranges have vocally objected to administration policy since the death of their son.

A critical question is whether companies will even be vulnerable to civil actions brought by customers caught up in dragnets. After the last NSA surveillance scandal -- the warrantless wiretapping carried out under President George W. Bush -- the relevant telecom firms were retroactively immunized from lawsuits. During presidential primary season, candidate Barack Obama more than once said he would filibuster such legislation, but wound up voting for it in July 2008. In October 2012, the Supreme Court declined to consider a challenge to that law, in the case of Hepting v. AT&T, a class-action lawsuit brought by the American Civil Liberties Union and the Electronic Frontier Foundation on behalf of telecom customers. The suit, filed in 2006, at first sought billions of dollars in damages for violations of users' privacy and federal law, but became about immunity after Verizon (VZ), Sprint (S), AT&T (T) and others were shielded from all criminal and civil liability for their involvement in the illegal eavesdropping. EFF is still involved in another class-action suit, Jewel v. NSA, filed on behalf of AT&T customers, which the NSA is trying to have dismissed under the state secrets privilege.

The legal blogger Marcy Wheeler points out that several of the companies now connected to PRISM previously opposed retroactive immunity for telecoms: A February 2008 letter signed by Microsoft, Google, Yahoo, Oracle and others called for "clear rules" governing access to user data and distinguished between "blanket retroactive immunity for violations of law, and prospective immunity, the latter of which we strongly support." We don't yet know exactly what the government's arrangement with the PRISM companies was, but The Washington Post report that broke the news of the program's existence explained, "In exchange for immunity from lawsuits, companies such as Yahoo and AOL are obliged to accept a 'directive' from the attorney general and the director of national intelligence to open their servers to the FBI's Data Intercept Technology Unit, which handles liaison to U.S. companies from the NSA." [Editor's note: AOL is the parent company of DailyFinance.] The question, it seems, is not just do customers have a right to be outraged, but whether the constitutionality of such provisions can be successfully challenged in court, given the government's efforts to cloak its counterterrorism policies in secret.

Aside from lawsuits, there aren't obvious options for those looking to register their displeasure. As Silicon Valley Business Journal asks, "What alternative do consumers spooked by privacy intrusions have?" And it is in fact difficult to imagine boycotting all the implicated services and staying online. But for those who want to try, the publication provides a list of relatively easy-to-use encrypted options with colorful names like DuckDuckGo, Hushmail and Cryptocat.


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7 Comments

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Tene Bane

tax payers, customers, and bussiness are on the same team in that they dont like being a victim of gov corosion. tax payers hand over info under gov corision.
if you gave the bussiness permit to share your info, it can but doesnt have to, and doesnt mean its legal for gov to view it, because thats not what gov is being paid to do. not doing what your paid to do=fraud/theft=owe refund and fired.
if someone robs a bank, do you sue the banker for not protecting your $ well enough?
handing over info under corisoin=robbery and theft.
if the business broke a confindentiality contract you had with them, by uncoroced giving or selling info to gov, then you can sue them, for a refund.

June 21 2013 at 6:11 PM Report abuse +1 rate up rate down Reply
Sam Kephart

Freedom on the Rocks: Tyranny versus Terrorism

I called out this domestic eavesdropping abuse, in a written Op-Ed, on October 30, 2010 in the Rapid City Journal:

“For national security purposes, Americans are already subject to warrantless wiretaps of calls and emails, the warrantless GPS “tagging” of their vehicles, the domestic use of Predators or other spy-in-the-sky drones, and the Department of Homeland Security’s monitoring of all our behavior through ‘data fusion centers.’ (Google that, it’s an eyeopener.)"

Where was the hue and cry or outrage?

“I told you so” isn’t seemly, but it can be instructive. My warning then was accurate, my claims now confirmed by the NSA, and my conclusion vindicated.

However, we’re still not being told the full truth.

Our phone calls, GPS locations, emails, audios, videos, photographs, Google searches, Facebook postings, and domestic drone surveillance data are all being recorded for key words and patterns and then electronically “fused” (merged and collated) with a master data file that includes our banking records, credit card charges, travel records, store purchases, etc.

Still evolving technically, the secret national security goal is to build, over time, a detailed mathematical 3-D model of every citizen’s psychographic patterns for behavior analysis and prediction purposes (seriously “Big Brother”- go rent the sci-fi film Minority Report).

How do I know this? Simple, two Israeli firms with deep Mossad connections, Narus (now wholly-owned by Boeing) and Verint, drop-dead technical experts in behavior prediction modeling, are closely working with the NSA, DHS, etc. Narus’ corporate website home page clearly touts its advanced analytics as “Fusing together hundreds of data dimensions for deep, focused insight and control.”

As former Booz Allen Hamilton NSA technical consultant, now fugitive whistleblower, Edward Snowden recently said ”…they are intent on making every conversation and every form of behavior in the world known to them.”

The NSA is just now commissioning a massive $2 billion data fusion center in Bluffdale, Utah, where avatars (images used to represent each of us in their virtual world) will soon reside, subject to on-demand, retroactive digital strip searches of every aspect of our lives... all without our knowledge or permission.

Worse, we’re already being digitally censored; when I tried to share the already released Anonymous web links to Snowden’s recently-revealed NSA documents proving we’re all being bugged, Facebook blocked my post.

The 4th. Amendment to the U. S. Constitution clearly states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Our rights trashed, America’s freedoms on roc

June 13 2013 at 12:37 AM Report abuse rate up rate down Reply
demcoverup

Obamas chickens are coming home to roost. The lies and the cover ups keep coming and coming.

June 12 2013 at 3:28 PM Report abuse +1 rate up rate down Reply
h.hughjardon

Is this the new share everything plan?

June 12 2013 at 3:04 PM Report abuse +2 rate up rate down Reply
pipetsa

I DO NOT UNDERSTAND A COMMENT THAT SOMEONE DOES NOT CARE. IT APPEARS WHAT WE HAVE KNOW AS AN INTRUSION OF THE CONSTITION AS TO SEARCH THE SAME IS TRUE FOR THIS ACTION.

June 12 2013 at 11:51 AM Report abuse +1 rate up rate down Reply
ttww45

i dont really care i have nothing to hide

June 12 2013 at 7:49 AM Report abuse rate up rate down Reply
SwHE

Millions of terrorist can't be wrong, Verizon must be good.

June 11 2013 at 6:32 PM Report abuse +1 rate up rate down Reply