Wiretapping, Telecom Companies, and You
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The reason the government is so worried about telecom immunity is the ongoing lawsuit of Hepting v. AT&T. This lawsuit, filed by the Electronic Frontier Foundation, alleges that AT&T assisted the government in performing illegal electronic surveillance. The administration has an incentive to block the EFF’s lawsuit (and others like it) by asserting “state secrets,” as it’s likely that a trial would reveal evidence of criminal wrongdoing on the part of government officials. Another twist that sets the EFF’s case apart came from former AT&T employee Mark Klein, who provided the EFF attorneys with documents that revealed the installation of a secret room at AT&T’s San Francisco hub in early 2003. These documents purportedly show that the NSA has the ability to copy all of the internet traffic that passes through AT&T’s network. If Klein’s statements are true, and assuming similar installations were conducted at other hubs, the NSA may have examined nearly every communication that has traveled over U.S. networks since 2003. On the other hand, if the complaint is dismissed because a court decides that it poses too great a risk to national security, the incriminating evidence may never see the light of day.
Here’s where it gets expensive. If the EFF’s suit is allowed to proceed, and it reveals more widespread violations of the FISA laws, what can Americans do about it? FISA provides financial remedies for people who have been illegally wiretapped. Code provision 50 U.S.C. § 1810 imposes civil liability on any person (or entity) for each violation of FISA. Victims of illegal surveillance are entitled to recover $100 for each day they were wiretapped, or actual damages over $1000, whichever is greater. Additionally, FISA provides compensation for attorney’s fees and other costs of litigation. This is good news for private citizens and their lawyers who contemplate facing off against well-funded corporations with truly staggering financial liability at stake.
As you may imagine, one hundred dollars per day, per person adds up over four years. If the Hepting lawsuit is successful, AT&T could face damages of over $36,500 per claimant per year. Nearly every person with a computer or phone in the United States could be impacted. If AT&T is liable to just their own customers, with over 70 million wireless subscribers, one year of warrantless wiretaps could amount to more than two and a half trillion dollars in statutory damages.