The Telecoms and The Big, Bad Lawsuits

What’s best for the telecoms is best for the nation’s security, the administration has argued. And what’s best for the telecoms is for all those lawsuits against them for cooperating with the warrantless wiretapping program to go away. After all, “these people are responsible for shareholders.”

But while administration officials like the director of national intelligence and attorney general have asserted that the telecoms face the “continued risk of billion-dollar class action suits,” it’s worth putting that claim in context.

I asked Kurt Opsahl, who represents the Electronic Freedom Foundation in its class action suit against AT&T, to walk me through.

EFF’s suit features evidence provided by former AT&T technician Mark Klein, who disclosed two years ago how the company had allowed the NSA to use a small room in San Francisco to capture untold millions of phone and e-mail communications. EFF’s complaint charges that the program violated the First and Fourth Amendments and Foreign Intelligence Surveillance Act and other federal statutes.

Above all, Opsahl said, it’s important to realize that for the plaintiffs in the suit to collect damages of billions, “they need to have spied on a lot of people. If they say that the interceptions and surveillance is limited to only people in communication with Al Qaeda, that suggests it’s a very small number and therefore a very small amount in damages. For it to be billions, they need to have spied on millions of people.”

There are 37 suits against the telecommunications companies alleged to have participated in the program, i.e. AT&T, BellSouth, Sprint and MCI/Verizon; suits that have all been transferred to federal court California’s Northern District. Six of those suits are on behalf of state officials in Missouri, Maine, New Jersey, Connecticut and Vermont to investigate the program.

Should damages be awarded, however, they would be awarded based on how many people the government, via the telecoms, surveilled illegally, not the number of suits, Opsahl said. EFF’s complaint excludes “foreign powers,” “agents of foreign powers” and “anyone who knowingly engages in sabotage or international terrorism” from the class.

When I asked Opsahl what he thought likely damages against AT&T might be — if the suit was successful on all of its claims, a very big “if” (see below) — he said $13,000 per customer who was a victim of illegal surveillance.

But a final judgment, should one ever come, is years away. Right now, EFF is waiting for a decision from the Ninth Circuit Court of Appeals on whether the government can invoke the state secrets privilege to rebuff lawsuits challenging the program. It’s not clear when such a decision will come (they’ve been waiting for more than six months). Regardless of its outcome, that decision is likely to be appealed all the way up to the Supreme Court, Opsahl said, a process that could take years.

If EFF is successful there, the next battle begins: government lawyers will likely argue that the President has the right, because of Constitutional powers, to ignore the Foreign Intelligence Surveillance Act. That will likely set in motion another decision, appeals and counter-appeals all the way up to the Supreme Court.

“Maybe, after we’ve been to the Supreme Court twice, we might go back down to the district court and actually begin litigating the case,” Opsahl told me. “The question of damages is a long, long way away.”

If the latest signs from Congress are any indication, however, EFF might soon be confronted with legislation that will make its suit even more difficult. But that will mean just another fight, Opsahl says.

“It raises the interesting question of whether you can bar people from bringing Constitutional claims to the court and if immunity passes, we’re going to look at all of our available options.” For now, he said, EFF was concentrating its energy on convincing Congress not to grant the telecoms retroactive immunity.

“People have been trying to get rid of our lawsuit for a long time now. We’ll take each day at a time.”