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."
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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. EFFâs 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.