The National Security Agency (“NSA”) along with other government agencies (e.g., FBI, CIA) have expanded their surveillance programs after several terrorist attacks took place on domestic soil. It is a known fact that the federal government is systematically tracking domestic and international calls of its citizens. The surveillance program does not end there but also expands to text messages, internet browsing, and emails.
There is information that indicates the President’s Surveillance Program (“The Program”) was designed to assess, evaluate, gather, and analyze a tremendous amount of information with or without subpoenas or warrants. The Program is intended to disrupt actual or potential terrorist attacks that could be instigated by known or unknown criminals. The government has setup a massive collaboration effort with major telecommunication companies to gather information that would usually not be subject to surveillance. The telecommunication service providers have given access to the NSA to install surveillance equipment (e.g., “fiber-optic splitter”) which makes an exact copy of the data that’s passing through their systems and sends it to the government. Also, other special equipment such as the “Narus Semantic Traffic Analyzer” has been installed on the telecommunication systems to conduct deep packet inspections. These analyzers are capable of assessing and sifting through large data segments (e.g., 10 gigabits) and internet traffic.
These pervasive surveillance programs were authorized by President Bush after September 11, 2001. There is real time access to internet traffic and telephone records that was not previously available for previous surveillance programs. Also, the electronic information is being gathered in real time and stored on secure databases.
What are the relevant laws?
The Electronic Communications Privacy Act is one of the applicable laws. It is a federal statute which extends restrictions on government surveillance such as wiretapping phone calls and internet communications. It includes three separate titles. Title I is the “Wiretap Act” (codified under 18 U.S.C. §§ 2510-2523) which makes the interception of electronic communications during transmission and use of intercepted communications unlawful. Title II is the “Stored Communications Act” (codified under 18 U.S.C. §§ 2701-2713) that’s designed to protect electronic communications in storage. Title III is the “Pen Register Act” (codified under 18 U.S.C. §§ 3121-3127) that is designed to restrict the use of pen registers and trap-and-trace devices which record and capture numbers of calls made to the target phone. These laws are designed to promote the regulation of government spying programs which could be abused if left without scrutiny.
The Wiretap Act provides a “private right of action” against any person who intentionally intercepts, attempts to intercept, or procures anyone to intercept wire, oral, or electronic communications. The following cases have analyzed this statute and held that an act is not intentional if it’s the product of inadvertence or mistake. See In re Pharmatrak, Inc., 329 F.3d 9, 23 (1st Cir. 2003); Sanders v. Robert Bosch Corp., 38 F.3d 736, 742-43 (4th Cir. 1994); United States v. Townsend, 987 F.2d 927, 930 (2d Cir. 1993). Yet, other courts have held that defendant’s motive is not relevant. Abraham v. City of Greenville (4th Cir. 2001) 237 F.3d 386, 391-392.
Plaintiffs have argued their privacy has been unlawfully invaded by unwarranted or unjustified surveillance of their online transactions. The courts have grappled with this common law tort wherein the plaintiff must prove that: (1) plaintiff had a reasonable expectation of privacy; (2) defendant intentionally intruded in his/her private zone; (3) defendant’s intrusion was highly offensive to a reasonable person; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm. Plaintiffs have presented this cause of action in cases against several service providers such as Facebook, Google, and Spokeo.
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