Posner on In re: National Security Agency Telecommunications Records Litigation

Steve C. Posner   By Steve C. Posner, Attorney, Posner Law Firm

Steve C. Posner on In re: National Security Agency Telecommunications Records Litigation (El Haramain Islamic Foundation, Inc v. NSA), 2010 U.S. Dist. LEXIS 31287 (N.D. Cal., Mar. 31, 2010), the Foreign Intelligence Surveillance Act and the State Secrets Privilege

“Although Congress has immunized telecommunications carriers from suit based on the NSA's domestic electronic surveillance program, the federal government remains a potential deep-pocket defendant,” writes Steve C. Posner. “While it is difficult for a plaintiff to prove he or she was subjected to NSA surveillance and is an 'aggrieved person,' under FISA, the Al-Haramain Islamic Foundation has proved--at least pending appeal--that it is not impossible. Learn how they did it."

“Since The New York Times reported in 2005 that the National Security Agency was conducting domestic electronic surveillance, dozens of plaintiffs have sued the federal government, federal officials, and the telecommunications companies that allegedly aided the government in violating the Foreign Intelligence Surveillance Act (FISA),” explains Posner. “Most of the lawsuits failed before the merit could be addressed, falling to the gauntlet of law, doctrine, and privilege raised by government defense attorneys. As an example of law, the 2008 FISA Amendments granted retroactive immunity to the telecommunications companies. Turning to doctrines, government lawyers asserted sovereign immunity. However, the most daunting challenge to plaintiffs has been the state secrets privilege (detailed in Privacy Law and the U.S.A. PATRIOT Act, § 4.32 et seq.), which the government has used either to dismiss cases on the ground that the very subject matter of the suit is a matter of national security, or to deny plaintiffs the evidence needed to make a prima facie case on the ground that disclosure would endanger national security.”

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Steve C. Posner is the author of the annually updated legal treatise Privacy Law and The USA PATRIOT Act (LexisNexis/Matthew Bender), emphasizing the practical implications, burdens and options for organizations and individuals cooperating with and subject to government evolving reporting requirements, information requests and surveillance.

Mr. Posner frequently speaks on privacy and national security law to professional and community groups, as well as to undergraduate and graduate level university classes.

Mr. Posner is a former editor of the Technology Law and Policy Review column for The Colorado Lawyer magazine, and former co-chair of the Colorado Bar Association's Law and Technology Committee. He is admitted to practice law in Colorado, New York and California, and is in private practice in Evergreen, Colorado.

Privacy Law and The USA PATRIOT Act is available online to subscribers on lexis.com, and the print version can be purchased at The Store.

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