9th Circuit: No Way to Punish the Government If They Illegally Collect (But Don’t Use) Your Telecommunications

As Josh Gerstein just reported, the 9th Circuit has thrown out a decision against the government in the al-Haramain wiretapping suit. While they don’t comment on Judge Vaughn Walker’s judgement that al-Haramain had standing and had proven they had been spied on, the panel ultimately held that for the alleged actions–collecting al-Haramain’s telecommunications–the government has sovereign immunity. Al-Haramain can only sue individuals, not the government.

The ruling sucks for al-Haramain. But it has larger implications. Effectively, the 9th Circuit is saying there’s no way to hold the government accountable for simply collecting your telecommunications illegally; you can only hold them accountable if they use that information in a trial.

It distinguishes those two activities this way, pointing to language that specifically invokes the United States as a defendant in case of 1806 (use in an official proceeding) but not 1810 (collection).

Contrasting § 1810 liability, for which sovereign immunity is not explicitly waived, with § 1806 liability, for which it is, also illuminates congressional purpose. Liability under the two sections, while similar in its reach, is not identical. Section 1806, combined with 18 U.S.C. § 2712, renders the United States liable only for the “use[ ] and disclos[ure]” of information “by Federal officers and employees” in an unlawful manner. Section 1810, by contrast, also creates liability for the actual collection of the information in the first place, targeting “electronic surveillance or . . . disclos[ure] or use[ ]” of that information. (emphasis added). Under this scheme, Al-Haramain can bring a suit for damages against the United States for use of the collected information, but cannot bring suit against the government for collection of the information itself. Cf. ACLU v. NSA, 493 F.3d 644, 671 (6th Cir. 2007) (Lead Opinion of Batchelder, J.) (noting that FISA potentially allows limitless information collection upon issuance of warrant, but limits use and dissemination of information under, inter alia, § 1806(a)). Although such a structure may seem anomalous and even unfair, the policy judgment is one for Congress, not the courts. Also, because governmental liability remains under § 1806, the district court’s concern that FISA relief would become a dead letter is not valid. See In re Nat’l Sec. Agency Telecomms. Records Litig., 564 F. Supp. 2d at 1125.

[snip]

Congress can and did waive sovereign immunity with respect to violations for which it wished to render the United States liable. It deliberately did not waive immunity with respect to § 1810, and the district court erred by imputing an implied waiver. Al Haramain’s suit for damages against the United States may not proceed under § 1810.

Because al-Haramain, at a time when Vaughn Walker was using 1810 to get by the government’s State Secrets invocation, said “it was not proceeding under other sections of FISA,” its existing claim is limited to 1810. The government used the information collected–in a secret process that ended up declaring al-Haramain a terrorist supporter–but not in a trial, and therefore not in a way al-Haramain can easily hold the government liable for.

The implication, of course, is that all the rest of the collection the government engages in–of all of us, not just al-Haramain–also escapes all accountability. So long as the government never uses the information itself–even if the entire rest of their case is based on illegally collected information (as it was in, at a minimum, al-Haramain’s terrorist designation)–a person cannot hold the government itself responsible.

The people who can be held accountable? The non-governmental or non law enforcement persons who conduct the surveillance.

But of course, they–the telecoms–have already been granted immunity.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

10 replies
  1. Cujo359 says:

    When are the courts going to catch up with events of the late Twentieth Century? The phrase “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” means the government isn’t allowed to seize those things without reason. That means that when the government collects information on the Internet, which includes what would be considered “papers”, they are seizing our papers without due process.

  2. emptywheel says:

    @Cujo359: I’m not sure this is the court’s problem. I think it’s the way the law was written and its interpretation that al-H had ceded any claim under 1806.

  3. pdaly says:

    Well, this is depressing. In the future, if the second part were possible to prove (that the government used the information against you), the first hurdle will recur: prove the government obtained it illegally–on top of the fact that the telecoms have immunity to act illegally.

    Which reminds me. Whitey Bulger is claiming he had an immunity deal (to commit murder?)–and it came, he claims, not from a rogue FBI agent but from someone high up in DoJ. His lawyer is trying to get a jury to hear the issue. Supposedly Whitey wants to take the witness stand (or wants to blackmail the government into a deal favorable to Whitey). Hope Whitey kept his alleged tape recordings of this DOJ deal safe from government seizure. The government has a way of destroying and losing tapes of late.
    http://www.boston.com/news/local/massachusetts/articles/2012/08/07/bulger_plans_to_take_the_stand/

  4. DWBartoo says:

    “Sovereign Immunity” … the courts are creatures created by the sovereign and therefore dare not challenge the sovereign who, by convention and belief, can do no legal wrong …

    Cicero once wrote: “A nation can survive its fools and even the ambitious. But it cannot survive treason from within. An enemy at the gates is less formidable, for he is known and carries his banner openly. But the traitor moves amongst those within the gate freely, his sly whispers rustling through all the alleys, heard in the very halls of government itself. For the traitor appears not a traitor, he speaks in accents familiar to his victims, and he wears their face and their arguments, he appeals to the baseness that lies deep in the hearts of all men. He rots the soul of a nation, he works secretly and unknown in the night to undermine the pillars of the city, he infects the body politic so that it can no longer resist. A murderer is less to fear. A traitor is the plague.”

    Do such words ring of truth, today?

    Thank you, EW, for your unrelenting courage and willingness to speak the truth, that others might hear and heed.

    DW

  5. MadDog says:

    “…So long as the government never uses the information itself–even if the entire rest of their case is based on illegally collected information (as it was in, at a minimum, al-Haramain’s terrorist designation)–a person cannot hold the government itself responsible…”

    I’ve longed believed that US government entities (law enforcement, intelligence, etc.) at the local, state and federal level have done such warrantless collection of information for decades now as a matter of course and have internally judged themselves not legally accountable for such activity unless or until they explicitly and directly use such information in a criminal case.

    To see a Federal Court of Appeals publicly bless such unconstitutional activity is really mind-boggling!

    What part of a search under the 4th Amendment don’t they understand?

  6. Peterr says:

    Refresh my memory, Marcy. Have the telecoms been granted immunity as corporations, or does that immunity also extend to individuals?

    As long as we’re splitting governmental hairs like this, I’m curious as to whether the immunity agreement does the same.

    If the immunity extends only to the corporation, then an enterprising attorney might be able to try working up the corporate food chain to go after those who ordered the illegal taps, both in the corporation and in government.

  7. rugger9 says:

    @pdaly: #4
    The issue is eloquently observed here, and a classic catch-22. Al-Haramain only knew of the spying because the government screwed up and told them. There is already precedent that says one must have a tort to pursue a claim of illegal spying, and now we have the precedent being made that the spying will have no consequence without proof of damage or use by the government. However, these recordings were apparently used on some level, but of course a National Security exemption will be used to shield any further scrutiny over whether the information was used.

    Cicero, meet Orwell.

  8. Bob Schacht says:

    @MadDog:
    “I’ve longed believed that US government entities (law enforcement, intelligence, etc.) at the local, state and federal level have done such warrantless collection of information for decades now as a matter of course and have internally judged themselves not legally accountable for such activity unless or until they explicitly and directly use such information in a criminal case.”

    This is nothing new. Gov. William Bradford read the mail of certain British clerics (IIRC), who were spying on the colonists on behalf of their English sponsors. And they didn’t just read the mail, they deported the parties to this spying. So, I suppose we could say that warrantless wiretapping is as American as apple pie.

    Bob in AZ

  9. Eric Hodgdon says:

    As a non-lawyer, I find ‘Sovereign Immunity’ and ‘illegally collected information’ very troublesome, to say the least.

    With law in constant flux, it has no meaning. Should we create a different legal system based on certainty? Or, just reset the national/federal government?

    The patchwork done to our foreign-derived system, while fitting for an empire – wait, wait, we are an empire.

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