Some bloggers are trying to figure out the potential civil liability of the telephone companies if they violated the Stored Communications Act by disclosing call records to the NSA without a court order. I would guess that a lawsuit has been filed already, and if it hasn’t a bunch are coming soon. If a court finds that the telephone companies violated the Stored Communications Act, will they face liability in the range of billions of dollars?
I have two quick thoughts for those that want to look into this in more detail. First, be sure that you consider the good faith exception to liability under the statute, 18 U.S.C. 2707(e):
A good faith reliance on—
(1) a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization (including a request of a governmental entity under section 2703 (f) of this title);
(2) a request of an investigative or law enforcement officer under section 2518 (7) of this title; or
(3) a good faith determination that section 2511 (3) of this title permitted the conduct complained of;
is a complete defense to any civil or criminal action brought under this chapter or any other law.
The language here is really unclear as a textual matter, but there are some cases on what it means in the analogous context of the Wiretap Act. When I looked into this when I was writing the DOJ manual, I found a big difference between how courts interpreted the exception in the context of government vs. civil action:
The relatively few cases interpreting the good-faith defense are notably erratic. In general, however, the courts have permitted law enforcement officers to rely on the good-faith defense when they make honest mistakes in the course of their official duties. See, e.g., Kilgore v. Mitchell, 623 F.2d 631, 633 (9th Cir. 1980) (“Officials charged with violation of Title III may invoke the defense of good faith under § 2520 if they can demonstrate: (1) that they had a subjective good faith belief that they were acting in compliance with the statute; and (2) that this belief was itself reasonable.”); Hallinan v. Mitchell, 418 F. Supp. 1056, 1057 (N.D. Cal. 1976) (good-faith exception protects Attorney General from civil suit after Supreme Court rejects Attorney General’s interpretation of Title III). In contrast, the courts have not permitted private parties to rely on good-faith “mistake of law” defenses in civil wiretapping cases. See, e. g., Williams v. Poulos, 11 F.3d 271, 285 (1st Cir. 1993); Heggy v. Heggy, 944 F.2d 1537, 1541-42 (10th Cir. 1991).
I’d need to re-read those cases to get better up to speed on this, but it’s not obvious to me whether a court would see this as a government good-faith case or a civil good-faith case. It’s kind of a mix.
Second, from a practical perspective it’s worth asking how far a suit would go given that the Administration would presumably try to stop the suit by invoking the military and state secrets doctrine (.pdf), as they did recently in a suit over telco involvement in the 1st NSA program. It’s unclear how those claims will pan out — either in the EFF case or in one filed against the telephone companies for this program — but they are at least a significant roadblock to an attempt to recover damages against the telephone companies for the disclosure.
(cross posted at OrinKerr.com)