Enforcing the Surveillance Laws
posted by Daniel Solove
As many of the recent revelations of government surveillance and information gathering are revealing, government agencies such as the FBI and NSA are violating the law. Recently, the DOJ investigation into the FBI’s use of NSLs reveals many violations of law. So where are the penalties?
In the latest surveillance scandal, the FBI says that it is sorry. According to the New York Times:
Mr. Mueller embraced responsibility for the lapses, detailed in a report by the inspector general of the Justice Department, and promised to do everything he could to avoid repeating them. . . .
Mr. Mueller left open the possibility that some F.B.I. employees might be disciplined for their errors involving national security letters. In response to a question, he said there had been “no discussion” on whether he should step down.
One of the problems with the law is that it doesn’t say much with regard to penalties for NSLs. When the FBI contravenes the law, is the only sanction that they must apologize, appear contrite, and say that they might possibly discipline a few folks? The law provides extraordinary powers to the FBI when it comes to NSLs, and these are issued in tense situations of national security, so it is predictable that overzealousness and abuses might occur. That’s why the law needs to be more than a guideline. It needs enforcement teeth.
Another interesting aspect of the NSL provision in the Electronic Communications Privacy Act, 18 U.S.C. § 2709, is that it doesn’t appear to specify any penalties for Internet Service Providers that don’t comply. The statute says that an ISP “shall comply” with an NSL and it imposes a gag order. But what’s the penalty for not complying? The statute doesn’t appear to specify one. Does anybody know what the penalty is?
March 9, 2007 at 10:14 pm
Posted in: Privacy, Privacy (Electronic Surveillance), Privacy (National Security)
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Responses (2)
Joe - March 11, 2007 at 5:51 pm
If a private party is aware of a search under an unlawful NSL, can they state a Bivens action?
Ethan - March 14, 2007 at 1:59 pm
Only if it meets the Bivens threshold, which requires, among other things, a 4th Amendment violation. ECPA exists in large part because of Congressional dissatisfaction. That dissatisfaction arose from the exceedingly narrow scope of 4th Amendment protection (or more accurately, the absence of protection) the Supreme Court has given electronic communications.
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