Prominent Salt Lake City Residents Sue The NSA Over Mass Warrantless Surveillance During The 2002 Olympics
from the statute-of-limitations-may-be-a-problem dept
All the cool kids are suing the NSA these days. The EFF and ACLU led the way, suing the NSA before suing the NSA was cool. Others followed as a series Snowden/Greenwald split releases gained popularity (culimating in Greenwald leaving The Guardian to start his own
label website). Most recently, those abused by the NSA for their whistleblowing efforts enlisted the help of the frequently more-entertaining-than-effective Larry Klayman to sue the NSA (and many others) for the retaliatory actions that followed their whistleblowing efforts.
The AP reports (without attaching the relevant filing, because information wants to be
free omitted) that former Salt Lake City mayor Rocky Anderson is suing the NSA for “mass warrantless surveillance” conducted during the 2002 Winter Olympics, which were held less than six months after the 9/11 attacks.
Rocky Anderson may be suing the NSA, but it appears he’s only doing so by hitching his name to a pre-existing lawsuit. Anderson’s name isn’t found among the listed plaintiffs, which basically makes him a “similarly situated party” — indistinguishable from the average Salt Lake City resident except that the press is willing to publish his statements.
“I was outraged by this,” Anderson said Wednesday. “Fundamentally, we want to get to the truth and expose what our government is doing.”
Anderson says he learned about the program from a 2013 report in the Wall Street Journal and has since confirmed it with an unnamed agency source.
The suit names the NSA, FBI, George W. Bush, Michael Hayden, Dick Cheney and 50 “Does.” What’s alleged in the filing is the interception of data and communications in the Salt Lake City area for the duration of the Winter Olympics.
The NSA, in conjunction with the FBI, planned and implemented a mass warrantless program—for which there was no probable cause, completely outside the Constitution and outside of any applicable federal statutory laws, including FISA, the Wiretap Act, and the Stored Communications Act—in which blanket surveillance was attempted and achieved during a period preceding the commencement of the 2002 Salt Lake Winter Olympic Games and throughout the period of the Games, from February 8, 2002 (Opening Ceremony) through February 24 (Closing Ceremony), over everyone within designated geographical areas, including Salt Lake City, Utah, and the areas including and in the vicinity of all Olympic venues.
That surveillance included the interception and key-word spotting analysis of the contents of every text message sent and received, every email sent and received, and information reflecting the time and length of, and telephone numbers involved in, every telephone conversation involving any person within the areas subjected to the blanket surveillance. In some instances, people or telephone numbers were targeted by the NSA and FBI and telephone conversations involving such targeted telephone numbers were illegally and unconstitutionally recorded and subjected to analysis, without a warrant and without probable cause.
In support of these allegations, it cites the exposure of the “Stellar Wind” program in 2005, as well as other confirmations of the warrantless wiretapping authority granted after the 9/11 attacks.
The plaintiffs’ standing relies on very simple assertions: that they made phone calls and sent text messages/emails during the Winter Olympics. Given what we know about the NSA’s bulk collection programs, this is all that’s really needed to make these allegations. Ex-mayor Rocky Anderson says he knows “about 200 others” who could make similar claims, but the barrier of entry for this class is low enough that thousands of residents and non-residents could join the proceedings, if granted class action status by the court. Here are the class stipulations:
All individuals in the United States who sent or received a phone call, text message, or email from or to a location within Salt Lake City or within an area including and adjacent to any other 2002 Salt Lake Winter Olympic Games venue where any of the defendants were engaged in warrantless surveillance of communications by telephone, text messaging, or email during the time of December 1, 2001 to February 24, 2002 (or whenever it is established the warrantless surveillance took place).
The lawsuit alleges First and Fourth Amendment violations, as well as violations of FISA, the Wiretap Act and the Stored Communications Act. It also cites similar violations of Utah’s Constitution.
I’m not sure this suit has any chance of surviving a motion to dismiss by the government. While standing is easier to achieve now that leaked documents have verified the specifics of the NSA’s collection programs, the courts have generally granted more deference to the government’s “national security” arguments. What is (slightly) helpful is that the Second Circuit found the Section 215 bulk collection isn’t actually authorized by the Patriot Act. While Utah resides outside of that Circuit, decisions that question the legitimacy of bulk surveillance still may prove useful to the plaintiffs’ claims.
If there’s going to be any retribution for the NSA’s abuses, it will probably have to wait until the Supreme Court takes a swing at it. And by the time it does, the question about the legality of its bulk collection program (under Section 215) will be largely moot, thanks to the passage of the USA Freedom Act. While lawsuits like these have been mostly fruitless in their pursuit of favorable judgments, they have proven useful for shaking loose previously-hidden documents and legal justifications for warrantless, domestic surveillance.