ECPA, FISA Rules May Aid Telecoms in NSA Surveillance-Related Lawsuits

The growing furor last week over the implications of National Security Agency surveillance programs that collect phone metadata and data from online services included a growing number of lawsuits aimed at stopping the programs. Although most of the lawsuits targeted the NSA and the rest of the U.S. intelligence community, at least two class-action suits also involved the telecom and Internet companies from which the government collected data. Judicial Watch founder Larry Klayman, the lead plaintiff in those lawsuits, claimed the companies are as complicit as the government in violating their subscribers’ constitutional rights. A former federal prosecutor who has handled telecom cases at the federal and state levels told us existing legal precedents will make it difficult for Klayman to prevail over the companies, and are likely to preclude others from bringing similar challenges.

Klayman is suing Verizon, AT&T and Sprint Nextel -- the companies believed to be participating in NSA collection of phone metadata -- along with Apple, Facebook, Google, Microsoft, Paltalk, Skype, Yahoo and YouTube. The two suits, filed in U.S. District Court for the District of Columbia, also target those companies’ CEOs, President Barack Obama, Attorney General Eric Holder, NSA Director Keith Alexander, former Foreign Intelligence Surveillance Court Judge Roger Vinson, the Department of Justice and NSA. A Verizon spokesman said “speaking only for Verizon, this case is without merit.” Sprint declined to comment, said a spokesman.

Klayman and the other plaintiffs claimed in the first of the two suits that the government defendants violated Verizon customers’ constitutional rights under the First, Fourth and Fifth amendments. The government’s actions are “an outrageous violation of constitutional rights and a means for the government to try and control the people and coerce them into submission,” he told us. Klayman is best known for Judicial Watch’s civil lawsuits against the Clinton administration in the 1990s. Vinson is included in the lawsuit because “he should have known better,” Klayman said. “He’s taken an oath to protect and defend the Constitution of the United States. He’s broken that oath.” The suit claimed Verizon and CEO Lowell McAdam, along with the government defendants, intentionally inflicted emotional distress on Verizon customers, as well as intrusion upon seclusion. The suit also claimed Verizon and McAdam violated the Electronic Communications Privacy Act of 1986. ECPA requires all electronic communications service providers to not voluntarily divulge metadata.

Klayman’s claims against Verizon are “very weak,” the former prosecutor told us. The claims of emotional distress and intrusion upon seclusion are based on state-based torts that are preempted by federal law, the former prosecutor said. Verizon also has an “airtight” defense against the ECPA claim, as that law includes exceptions in cases where the provider divulges the metadata as a result of a search warrant or court order, the prosecutor said. “In this case, we know the government had a court order because that was disclosed in the leak.” Vinson, who issued the order that compelled Verizon to turn over the metadata, is likely to be dismissed from the lawsuit “pretty quickly” by District Judge Richard Leon; although it’s possible Vinson’s order may be challenged, “he’s not going to be held civilly liable,” the former prosecutor said.

Verizon could also be protected under Section 802 of the Foreign Intelligence Surveillance Act Amendments of 2008, the former prosecutor said. Section 802 gives the attorney general the authority to inform a court that an electronic communications service provider was assisting the government pursuant to a court order, National Security Letter or other government order. The court would have limited review of the attorney general’s certification, but courts have generally accepted that certification, the former prosecutor said. If Holder certified the court order associated with the Verizon lawsuit, the case against Verizon and McAdam “would probably be over,” the former prosecutor said. At the time the amendments went into effect then-Attorney General Michael Mukasey used the law to justify blocking a set of 33 lawsuits against telecom companies for allowing the government to conduct warrantless wiretapping. The Supreme Court rejected an appeal in October from the American Civil Liberties Union (ACLU), Electronic Frontier Foundation (EFF) and others challenging the law.

The second Klayman lawsuit, which includes all of the other companies and all of the same government defendants save Vinson, is “a little different,” the former prosecutor said. The suit’s claims against the government defendants are the same as in the Verizon lawsuit, as are the claims against the non-government defendants -- emotional distress, intrusion upon seclusion and violations of ECPA. It’s more difficult to project the outcome of this suit for the non-government defendants because the claims of ECPA violations center on the Prism program, the former prosecutor said. The full parameters of the Prism program are not yet clear, including whether the involved companies voluntarily divulged data. “We don’t have a leaked court order or National Security Letter that tells us the basis of the program,” which would satisfy the ECPA exception requirements, the former prosecutor said. Many of the defendants in the case have publicly said they did not provide the data voluntarily, and voluntary divulgence of that information is “not in the DNA of your Yahoos and Googles and the rest,” the former prosecutor said. If the companies’ cooperation was forced, “that puts them in a much better position in terms of their defense,” the former prosecutor said, saying Holder’s certification of government orders would also give the companies the ability to defend themselves under Section 802. Those companies lied, “further indication of their culpability,” Klayman told us. “It’s a giant attempt to cover up. So we want this exposed legally."

If Section 802 becomes applicable in both suits, “the telecom and Internet companies are gone [from the suits], and this becomes a straight civil rights and public interest lawsuit against the government,” the former prosecutor said. Although some additional lawsuits against the companies are likely to occur, applicability of Section 802 is unlikely to make similar suits an attractive venue for significant potential financial rewards, the former prosecutor said. “Those 2008 FISA amendments made it a pretty different world."

Public interest groups have thus far focused their ire solely on the government. The ACLU is leading a lawsuit against Alexander, Holder, Director of National Intelligence James Clapper, Secretary of Defense Chuck Hagel and FBI Director Robert Mueller. The ACLU has no plans to file a similar lawsuit against the telecom or Internet companies because of Section 802 and other provisions in federal law, said Brett Kaufman, ACLU National Security Fellow. “The problem there is that the law grants those companies immunity,” he said. “There’s no way to file a lawsuit against them.”

EFF is continuing to push for a judgment in Jewel v. NSA. The group has filed a request to stop government requests to delay the case, “as now is precisely the time to litigate this case,” an EFF spokeswoman said. Free Press is focusing its own efforts on “raising awareness about the government surveillance programs and on changing the laws used to justify these programs,” Policy Counsel Jennifer Yeh said. “We aren’t really considering any legal action against the telecom companies right now, but we're not foreclosing any legal action either.”