Posted by Orin Kerr:
Sovereign Immunity and the Surveillance Statutes:
http://volokh.com/archives/archive_2009_04_05-2009_04_11.shtml#1239141470
Yesterday the Justice Department [1]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]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. [2]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.
References
1. http://www.eff.org/files/filenode/jewel/jewelmtdobama.pdf
2. http://www4.law.cornell.edu/uscode/18/usc_sec_18_00002712----000-.html
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