The Volokh Conspiracy - A Question about FISA and Injunctive Relief:

In his comment at Balkinization about Judge Taylor's NSA surveillance opinion, Laurence Tribe writes:

Had I been in [Judge Taylor's] place, I never would have reached the difficult First and Fourth Amendment issues that she disposed of so summarily when a powerful, and indeed all but impregnable, statutory path to decision at least appeared to be available under the FISA.

This raises a question I've been wondering about: Does FISA permit injunctive relief? Maybe this question is completely and utterly obvious to civil litigation types out there, and I'm just missing the obvious because I'm a criminal law persion. If so, I'll just tuck my tail between my legs and scamper off. But I began to wonder about this when I was looking at FISA's civil remedies provision, 50 U.S.C. 1810, which states:

An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801 (a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation and shall be entitled to recover—
(a) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater;
(b) punitive damages; and
(c) reasonable attorney's fees and other investigation and litigation costs reasonably incurred.

As a matter of text, injunctive relief is not included, unlike the analogous provisions of the Wiretap Act (which states explicitly that a court can provide "such preliminary and other equitable or declaratory relief as may be appropriate" in a Wiretap Act civil suit). I guess the civ pro/fed courts question is, does the existence of a damages remedy automatically give judges the authority to provide injunctive relief in appropriate cases as well? Thanks for any guidance you might have.

(Incidentally, I found cases indicating that injunctive relief is disfavored in cases with national security or foreign affairs implications, but the issue here is more about whether injunctive relief is permitted rather than whether it is favored or disfavored.)

	[Orin Kerr, August 20, 2006 at 10:45pm] Trackbacks A Question about FISA and Injunctive Relief: In his comment at Balkinization about Judge Taylor's NSA surveillance opinion, Laurence Tribe writes: Had I been in [Judge Taylor's] place, I never would have reached the difficult First and Fourth Amendment issues that she disposed of so summarily when a powerful, and indeed all but impregnable, statutory path to decision at least appeared to be available under the FISA. This raises a question I've been wondering about: Does FISA permit injunctive relief? Maybe this question is completely and utterly obvious to civil litigation types out there, and I'm just missing the obvious because I'm a criminal law persion. If so, I'll just tuck my tail between my legs and scamper off. But I began to wonder about this when I was looking at FISA's civil remedies provision, 50 U.S.C. 1810, which states: An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801 (a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation and shall be entitled to recover— (a) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater; (b) punitive damages; and (c) reasonable attorney's fees and other investigation and litigation costs reasonably incurred. As a matter of text, injunctive relief is not included, unlike the analogous provisions of the Wiretap Act (which states explicitly that a court can provide "such preliminary and other equitable or declaratory relief as may be appropriate" in a Wiretap Act civil suit). I guess the civ pro/fed courts question is, does the existence of a damages remedy automatically give judges the authority to provide injunctive relief in appropriate cases as well? Thanks for any guidance you might have. (Incidentally, I found cases indicating that injunctive relief is disfavored in cases with national security or foreign affairs implications, but the issue here is more about whether injunctive relief is permitted rather than whether it is favored or disfavored.)