Court: Feds Can Spy On Americans Without Warrants With No Legal Repurcussions

by Mike Masnick
Techdirt
Aug. 10, 2012

We've followed the Al-Haramain case against the US government for a while through all of its ridiculousness. This was the challenge to the government over warrantless wiretapping, which went through crazy twists and turns, because information on the wiretapping was deemed classified -- even though it was published by reporters. The only reason the case exists in the first place is that the government accidentally leaked a document that proved that such wiretapping happened. Earlier cases to challenge the warrantless wiretapping in general failed on the grounds that the people suing had no standing since they couldn't prove that they'd been spied upon without a warrant (and if this sounds like something Joseph Heller would write about, you've got the right idea).

Eventually, the court actually ruled that the feds violated wiretapping laws, but then there were questions of what the court could actually do about it. It turned into a wrist slap for the government, with it being ordered to pay $20,400 to each of the two lawyers who represented Al-Haramain.

However, earlier this week, that got overturned. The appeals court has basically said that even though Congress passed a law that said the feds could not eavesdrop on Americans without a warrant, it didn't waive sovereign immunity rights for the government, which lets the government basically wave away any lawsuits. And thus, the government can ignore wiretapping lawsuits -- even in the one and only case where there's clear evidence of it violating the law. Yeah.

Think about that one for a second.

And then... realize it gets worse. That's because in a different ruling, by the same court, a few months ago, the court said that someone couldn't sue the telcos for helping the government warrantlessly wiretap Americans, in part because they could still sue the government. Yet now they're saying that you can't actually sue the government either (once again, paging Joseph Heller).

The court tries to get around this by suggesting that you might be able to sue individuals within the government (though it then goes on to reject such an attempt in this case) or to recover actual monetary damages, if you can prove that such damage occurred. But "distress" apparently doesn't qualify since there's no monetary issue there. So, as long as the government spies on you illegally (and everyone seems to admit that it's illegal) without doing anything with that info that is causing you monetary damages, even if you find out about it, you probably can't do anything about it.

Yeah. That doesn't seem right.

The court itself admits that this result is "anomalous and even unfair," and says that's really Congress' problem because of the way it drafted the statute. Either way, the end result seems pretty crazy, and gives the federal government wide ability to spy on people at will, even as the law says they can't. This is a situation that Congress now needs to fix, though it almost certainly will not do so.








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