Sovereign Immunity and the Surveillance Statutes:
Yesterday the Justice Department filed a brief in Jewel v. NSA arguing that the statutory claims against the government for the NSA warrantless surveillance program cannot proceed because the causes of action under the Wiretap Act, the Stored Communications Act, and FISA are barred by the doctrine of sovereign immunity:
I see no limitations in that section to "a narrow set of allegations not presented here: where the Government obtains information about a person through intelligence-gathering, and Government agents unlawfully disclose that information." The statute itself says "any willful violation," and it expressly covers all of Chapter 121 (the SCA), all of Chapter 119 (the Wiretap Act), and those explicit sections of FISA.
Maybe I'm just missing something -- always a possibility. But it seems to me that the government's argument is that the court should read "any willful violation" to mean "a willful violation where the Government obtains information about a person through intelligence-gathering, and Government agents unlawfully disclose that information." The statute just doesn't say that.
[I]n the Wiretap Act and ECPA, Congress expressly preserved sovereign immunity against claims for damages and equitable relief, permitting such claims against only a “person or entity, other than the United States.” See 18 U.S.C. § 2520; 18 U.S.C. § 2707. Plaintiffs attempt to locate a waiver of sovereign immunity in other statutory provisions, primarily through a cause of action authorized by the Stored Communications Act, 18 U.S.C. § 2712, but this attempt fails. Section 2712 does not erase the express reservations of sovereign immunity noted above, because it applies solely to a narrow set of allegations not presented here: where the Government obtains information about a person through intelligence-gathering, and Government agents unlawfully disclose that information. Likewise, the Government preserves its position that Congress also has not waived sovereign immunity under in FISA to permit a damages claim against the United States. See 50 U.S.C. § 1810.This strikes me as a terrible argument. 18 U.S.C. § 2712 -- titled "Civil actions against the United States" -- is about as clear as you can get on this issue, it seems to me. It states:
Any person who is aggrieved by any willful violation of this chapter [the Stored Communications Act -- Ed.] or of chapter 119 of this title [the Wiretap Act -- Ed.] or of sections 106(a), 305(a), or 405(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) may commence an action in United States District Court against the United States to recover money damages.(emphasis added)
I see no limitations in that section to "a narrow set of allegations not presented here: where the Government obtains information about a person through intelligence-gathering, and Government agents unlawfully disclose that information." The statute itself says "any willful violation," and it expressly covers all of Chapter 121 (the SCA), all of Chapter 119 (the Wiretap Act), and those explicit sections of FISA.
Maybe I'm just missing something -- always a possibility. But it seems to me that the government's argument is that the court should read "any willful violation" to mean "a willful violation where the Government obtains information about a person through intelligence-gathering, and Government agents unlawfully disclose that information." The statute just doesn't say that.
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See too, the procedure for obtaining relief under 2712. One must first seek relief via the FTCA.
/wishfulthinking
Excellent! Great minds think alike. Or so I'm told.
John Yoo, is that you?
(1) The Constitution does not give the President super-constitutional powers to Do Whatever It Takes to Save the Nation. It makes him commander-in-chief of the armed forces. The Framers were sufficiently wary of Caesarism (without even the example of Napoleon before them) not to go further.
(2) Necessity is an affirmative defense; that is, it's not written into a statute. Therefore, the omission of affirmative defenses is not a mark of unconstitutional restriction on the (supposed) defense of necessity.
(3) Do you really want to live in a country where the President can do any damn thing he wants, if he claims the unreviewable power to do so in the name of national security, the factual basis for which is classified and accessible only to him? Because there have been countries like that, and they weren't nice to live in.
Those who felt this was legally actionable will continue to hold onto these views (hopefully).
Those who feel it is great only for those they like in office will join them.
Making a weak argument about the scope of 2712(a) is an example of "tyranny"? I'm not sure I follow.
Sorry, my comment was somewhat snide and out of place (in context with other posts today). I appologize.
However, were the courts to adopt this view which you feel to be untenable, that would allow the executive a more or less free hand regarding such wiretaps and this could lead to tyranny. My main point was that this is a more legitimate target of such criticism than is the actions of the Vermont Legislature :-)
Thanks for the apology -- much appreciated. If a court accepted that view, though, my guess is that Congress would just re-pass the statute with a more clear waiver of sovereign immunity.
I'm not saying it's a good argument, just that there's more to look at than just the conclusion in assessing its validity.
I think what you're missing is along the lines of what Greg pointed out above. With respect to FISA, section 2712 waives sovereign immunity only for willful violations of, as you put it, "those explicit sections of FISA." But those sections -- section 106(a), 305(a), and 405(a) of FISA -- are the non-disclosure provisions for information acquired through electronic surveillance, physical search and pen trap/trace under FISA. They have nothing to do with the acquisition of foreign intelligence information under FISA; they concern only what the Government may do with that information once it has been acquired. Nothing in section 2712 waives sovereign immunity with respect to claims regarding the actual conduct of foreign-intelligence surveillance--which are the claims of the plaintiffs in Jewel.
It's not a terrible argument. It's actually a really good argument. And I think it is plainly correct from the text of the relevant statutory provisions.
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I agree. See too other decisions that differentiate the capture and storage and electronic "pattern matching" of communications from human review of those communications. The capture, storage, and "machine-based" review is considered, under law, to not be a search or seizure at all.
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My point being that "disclosure" is at least as credible a line for triggering an offense (i.e., the governments argument relating to sovereign immunity is correct, in that "violation" requires illegal disclosure), as the line "capture and retain, but not subject to human review" is for not triggering a violation of the Fourth Amendment.
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This sovereignty defense is a parallel to 12.b.6, "failure to state a claim upon which the government has agreed to submit to liability."
cboldt - "This sovereignty defense is a parallel to 12.b.6, 'failure to state a claim upon which the government has agreed to submit to liability.'" Um, no it's not. See if there's a failure to state a claim, then the whole issue of immunity is irrelevant. One doesn't need immunity from a non-offense.
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I see the issue as between "sovereign immunity" and "absence of violation" as two ways of making the same point, when the absence of immunity and the presence of violation both hinge on statutory construction. But 12.b.6 doesn't play in criminal law, hence it being only a parallel.
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Here, the government is asserting that in order to be swept into the waiver of sovereign immunity, the plaintiff has to claim the presence of a violation; and the assertion goes on that in this case, "violation" necessarily includes "disclosure."
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IOW, the "immunity" asserted here flows from an assertion of "non-offense."
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I'm not making an attempt to have "immunity" and "failure to state a claim" be universally equivalent concepts. My point is that in the context of THIS suit, the state is asserting that the plaintiff's allegations do not constitute a violation for which there is a statutory waiver of immunity.
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-- You're blurring two completely distinct concepts. --
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They aren't blurred in my mind, I see them as mutually-exclusive options, with one or the other being available depending on the claim being asserted. My observation was simply that IN THIS CASE, there is a similarity between the two, in that the plaintiff has not alleged any unlawful disclosure, and the defendant asserts that unlawful disclosure is a necessary element to trigger the statutory waiver of sovereign immunity.
To borrow an analogy, the Government's claim is sort of like taking a statute that says "You cannot murder any person anywhere in the United States," and then saying that the prohibition is really only against murdering your first-cousin in Idaho because that's the particular example used in the legislative history. Such an argument would be laughed out of court, and should be.
In any event, I apologize if my post assumed some slight familiarity with the relevant statutes to see why the Government's argument is so poor: I was on my way to dinner and didn't have time to connect all of the dots.
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That argument will appear in the plaintiff's reply brief, with more support than a bare assertion. I has to have more support than a bare assertion, because the government has asserted, with argument, that unlawful disclosure is a necessary element of 2712.
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The "waiver of sovereign immunity" comes in the form of specific statutory clauses that provide causes of action against the government. In this case, the government has asserted, "Section 2712 ... applies solely to a narrow set of allegations not presented here ... and Government agents unlawfully disclose that information," and that there is no allegation of unlawful disclosure.
wfjag:
Dear Zuch:
While admitting that there is an argument (since no decisions hae intrepreted that statute yet), I suggest you do further research before concluding that 50 USC §1810 provides such a powerful remedy. As cboldt has correctly noted, when examined, the remedy is more eye-wash than substance. It helps to actually analyze the statute and not rely on a paraphrasing of it. It also helps to research similarly worded statutes.
50 USC §1810 provides the remedy of:
No cases have interpreted it, so it is proper to look to other statutes Congress has enacted that contain similar language. The Privacy Act also provides for civil remedies, using similar language, at 5 USC§552a(g)(4):
The courts have limited the apparent sweep of this language. To prove “actual damages” the plaintiff in a PA suit must prove that the violation had an adverse impact upon him. Wisdom v Dept., HUD, 713 F2d 422 (8th Cir. 1983), cert. den., 465 U.S. 1021 (1984); Cochran v US, 770 F.2d 949 (11th Cir. 1985). Emotional trauma or emotional damages do not qualify as “actual damages” and there is no recovery therefor. Albright v US, 235 U.S. App. D.C. 295, 732 F.2d 181 (D.C. Cir. 1984); McGinnis v. U.S. Air Force, 266 F. Supp. 2d 748, 779 (S. D. Ohio 2003); see also Meldrum v. United States Postal Serv., 2000 U.S. App. LEXIS 24058, 2000 WL 1477495 (6th Cir. Sept. 25, 2000) (plaintiff who alleged that he suffered stress, anxiety, and depression due to the improper maintenance and the improper disclosure of a file "failed to establish that he suffered any adverse effects for which he can recover under the Act.").
Accordingly, it looks like under 50 USC §1810 either plaintiffs will receive any out-of-pocket costs they can prove were caused by the violation, or, limited statutory damages. I stand by my original point, since it is based on more than a superficial reading of the law.
Cheers to you too!
Dear AdamJ:
I'm not claiming any great knowledge of the §2712, but, I wouldn't be so dismissive of cboldt's point. The gov't has filed a Rule 12(b)(1) factual attack on subject matter jurisdiction. Plaintiff has to prove, by presenting evidence, of acts falling within the waiver of sovereign immunity. Waivers of sovereign immunity are (supposedly) strictly construed so that the waiver is narrowly construed. cboldt is correct that in this case, and in the current procedural state of the case, the waiver of sovereign immunity and no violation issues are very similar. However, there are very important differences on their respective burdens of proof - factual attack under Rule 12(b)(1) vs. standards for summary judgment under Rule 56. It will be interesting to see how it plays out, and whether Prof. Kerr's reading of the statute (no disclosure necessary - and so no proof of disclosure is necessary) is adopted by the court, or whether cboldt's alternative intrepretation is adopted.
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There is no need to apologize for your reasonable assumptions. Given a poorly-rooted contention, the Court will summarily dismiss the government's assertion. Just the same, I think the government's claim presents an interesting subject to analyze beyond the summary conclusion.
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More particularly, I find the relevant statutory scheme to be rather dense. Section 2720 provides one venue for statutory damages, but precludes action against the government. Section 2511 has numerous "carve-outs" for what is not a violation; and the violations noted in Chapter 121 (where the supposedly-broad statutory cause of action in 2712 appears) distinguishes the act of interception (by other than the government) from improper disclosure by the government, with the government violation described in that chapter being limited to improper disclosure.
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Purely a rhetorical question: If Congress intended a broad right to a statutory cause of action, including allegations of interception without disclosure of the interception, why didn't it make the statutory construction parallel to Section 2520, with an insertion of a requirement to first take the complaint through FTCA, etc.? In other words, opening the right to a cause of action with the phrase:
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The government's argument doesn't rest solely on legislative history, it mostly points to several statutory provisions, providing for causes of action and defining violations, that it claims are correlated.
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Assuming, arguendo, that Section 2712 provides a statutory cause of action against the government, for interception without unlawful disclosure, I wonder what the parameters might be to sue against ECHELON or whatever the current system is for bulk interception.
What sort of evidentiary standard would one have to meet to survive summary judgement even in the absence of the government showing up to defend itself? All I can find on ESCHELON is a bunch of hearsay. Not enough to show standing. Not enough to show a violation.
I would think that one would have to do more than ask the courts to endorse a fishing expedition for state secrets.
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I don't recall if it's the Hepting case, but there's a contract employee who provided an affidavit to the effect of viewing and/or participating in erecting infrastructure that wholesale copied electronic communication transmissions and delivered them to the government. Agreed that the evidence of interception would have to be more than a naked claim.
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There's another recent case in the UK on the same subject - sweeping up of all communications and using a filter to (hopefully) screen out the interesting ones. The EU Court (IIRC) ruled the wholesale interception was contrary to some provision of law. At any rate, one could look to that case for ideas relating to evidentiary standards.
Section 2712 doesn't provide a cause of action, it simply provides a waiver of immunity for any cause of action found under the SCA, the wiretap act &the enumerated portions of FISA so long as the violation was wilful.
Maybe it's just me, but the state here seems to be saying, look at how these damage provisions explicitly exclude the US, this shows there's been no waiver of immunity. And that might be a good argument, except they're not even causes of action, they're merely damage provisions. And it's pretty clear why these sections aren't applicable, section 2712 enumerates the damages for to all actions against the United States.
When the law says "actual damages" or "liquidated damages", that's quite different from saying that it provides "actual damages [...] but in no case [...] less than the sum of $1000". Particularly so when you insist then that the plaintiff prove "actual damages" ("the plaintiff in a PA suit must prove that the violation had an adverse impact upon him"). The whole point of "liquidated damages" is that they're presumed; you don't need to prove them.
Cheers,
Perhaps I wasn't clear. I didn't say that cboldt was correct. I said that you shouldn't be dismissive of the arguments cboldt makes. Particularly in the context of a Rule 12(b)(1) factual challenge to subject matter jurisdiction in an action against the US, the plaintiff has to show fairly convincingly that the alleged acts are backed by evidence, and that the evidence shows a violation within the waiver of sovereign immunity. The law is quite clear, and generally favorable to the government when it challenges subject matter jurisdiction when arguing that a previously unintrepreted statute's waiver of sovereign immunity is narrower than plaintiff contends (and plaintiff's allegations are beyond the clear terms of the waiver by Congress).
The United States, as sovereign, may be sued only to the extent to which it has consented by statute. United States v. Testan, 424 U.S. 392, 399 (1976); United States v. Sherwood, 312 U.S. 584, 586 (1941). A waiver of sovereign immunity cannot be implied; rather, it must be unequivocally expressed by an act of Congress. Lehman v. Nakshian, 453 U.S. 156, 160 (1981).
The government gets the benefit of all doubts. Accordingly, while cboldt may not be correct in his intrepretation of the waiver of sovereign immunity (and the essential elements of a violation), Prof. Kerr may not be either. cboldt raises good points that arise in the context of litigation against sovereign governments, which do not arise in the context of litigation against private parties. Your comments don't indicate that you understand that difference -- which is frequently a fatal flaw to suits brought against the US.
Dear zuch:
I'm well aware that the statute uses "or". See the comments directly above, as they apply equally to intrepreting that part of the waiver of sovereign immunity, too. The "liquidated damages" provision can easily be intrepreted as meaning that if plaintiff establishes entitlement to "actual damages" by proving adverse effects, but is unable to prove the amount of damages with sufficient certainty to avoid those being denied on the grounds that the amount is speculative, then the amount (the "liquidated damages" amount) is therefore presumed to be correct and reasonable. That is a much more limited interpretation than the one you assume. Your intrepretation makes the statute into an absolute liability statute (liability without damages), and that would be a radical waiver of sovereign immunity.
Cheers to you, too!
What's going on in the Obama DOJ? Is Addington moonlighting there or something? This seems to be a claim that in effect the government can do any surveillance they like so long as they don't publicly reveal it.
A willfulness requirement, if it is interpreted to require that the government active set out to violate a known non-foreign agent's rights while not in pursuit of foreign agent conversations, would prevent most Plaintiffs from proving their cases and would enhance to impact of the state secrets exception by sewing secret investigations together with the willfulness requirement in the absence of an insider leak.
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Obama has generally supported surveillance by the government, and as president has a duty to preserve executive powers.
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Somebody should tell Greenwald that the assertion of sovereign immunity is not "new" to Obama. It was asserted in March, 2008, in the al Haramain case. Dckt. No. 17, Case 3:07-cv-00109-VRW, in case he wants to see for himself.
Furthermore, Cboldt's point is wrong because the grant of immunity has no limitations requiring disclosure- just read the statute. Even if the underlying statutes required disclosure (which they don't), it's irrelevant as that's a seperate and distinct issue from immunity.
I think what many people find disappointing about this is that the Obama administration didn't even just parrot the opinions of the Bush Administration that many of us thought were over the line but actively extended those as well.
[pocket] change we can believe in....
BTW, thanks for quoting the law; I'd forgotten the amount (1K per/violation or $100 per day, which ever is greater). I was thinking $1k/day ... but if a "violation" applies to each person surveilled, this can still add up quickly.
It seems pretty clear that the gummint/Congress didn't want violators getting off scott-free, and basically said that the invasion of privacy was injury enough, and ought to be deterred ... to the tune of $1K for every peek (plus court costs).
Cheers,
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