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NSA surveillance: let’s sue ’em!



The NSA surveillance program is now in bad hands.

The National Security Agency first lied about the NSA surveillance program. They said they were running no such program. (“N-n-not w-w-wittingly.”) Now they brazenly assert they have a perfect right. So now an angry United States Senator has the perfect remedy. He wants the American people, or at least everyone with a cellular telephone, to sue the NSA and ask a judge to enjoin the NSA surveillance program for good.

NSA surveillance: current lawsuits

Two different plaintiffs are working three cases through the federal courts against the NSA surveillance program. Larry Klayman founded Judicial Watch during the Clinton era and founded Freedom Watch more recently. He filed two different cases against the de facto President himself. He filed them in the U.S. District Court for the District of Columbia. And Judge Richard J. Leon granted a preliminary injunction, after finding that Klayman:

  1. Has standing to sue the government,
  2. Is highly likely to prevail, and
  3. Will suffer irreparable harm if the NSA surveillance program does not stop at once.

The judge stayed his order to give the government 45 days to appeal.

The American Civil Liberties Union filed another case, this time in New York City. There, Judge William Pauley summarily dismissed the case. He found the NSA surveillance program perfectly lawful. He even said, incredibly, that courts must reject individual liberty claims that would hamper the State’s efforts to keep people safe. What would Benjamin Franklin have thought about that finding? Well, we know, don’t we? After all, he once told several outlying frontiersmen to arm themselves to resist attack during the French-Indian War. And in so advising, Franklin famously told them,

Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.

Thus as matters now stand, two federal judges have set up a split between two judicial circuits: the Second (that includes New York State), and the District of Columbia Circuit.

Into this legal stew, Senator Rand Paul wants to jump.


How Rand Paul wants to sue the government

The NSA surveillance program is now in bad hands.

Headquarters of the NSA at Fort Meade, Maryland.

Rand Paul wants to take a class action against the NSA surveillance program. To do that he needs a lot of people to sign up as plaintiffs.

Remember what is at issue: the NSA collects metadata on your cellular telephone calls. (A metadatum is any “given” information, not about the content of your call, but about whom you talked to, when, and for how long, and whether they called you or you called them. The word derives from the Greek preposition meta- after and the verb didomi I give. The Romans changed this verb to do,  which you pronounce “doe.” Its other principle parts are dare, dedi, and datum.)

Last night, Rand Paul told Eric Bolling on the Hannity program how he wants to sue to stop the NSA from gathering metadata. Anyone who carries a cellular telephone, he says, will suffer harm under the NSA surveillance program. Such a person has standing to sue. What makes standing?

  1. Injury in fact,
  2. That the defendant is doing,
  3. That a court can stop.

Rand Paul instructs every cellphone subscriber to:

  1. Go to his page on Facebook. (Not the page that the Senate gives to every Senator.)
  2. Follow this link to his Class Action Lawsuit page. (Senator Paul hosts that page on the website for his campaign to stay in the Senate in 2016.)
  3. Fill in your name, e-mail address, and ZIP Code, and other information he asks for.

The second page asks for a money contribution. Does one have to contribute to take part in the lawsuit? The page does not make that clear.

Last night, your correspondent followed those links for the first time. They loaded, but slowly and sometimes with errors, especially on a “smartphone.” That can mean that page saw a lot of traffic.

Why sue the government?

The NSA surveillance program got a body blow yesterday.

The NSA’s Utah Data Center. Photo: S. Wilson, CC BY-SA 3.0 Unported License

One must sue to stop the NSA surveillance program to force the government to take the issue seriously. The NSA certainly does not take this seriously, or not in the right way. James Clapper sat before a House committee, wiped beads of sweat from his shiny, bald pate, and spoke weasel words that turn out to be lies. His boss, General Alexander, barked at Congress to stop complaining and leave things up to the professionals. Judge Pauley said much the same in his ruling.

A public-policy group can sue the government, but still must find particular plaintiffs and sue on their behalf. But when ordinary people sue the government in a body, neither the court nor the NSA can so easily dismiss the complaint.

That’s why Senator Paul wants ordinary people, people who carry cellphones, to stand together and sue to stop the NSA surveillance program.


The issue is more urgent today. Why? Because the NSA are now building a supercomputer to break any password, no matter how long. They might even want to break RSA-based privacy keys that the Pretty Good Privacy (PGP program and its GNU equivalent (GPG, GnuPG) use. Furthermore: for years, rumors have it that Microsoft Corporation built a “back door” into its Windows operating system for the NSA to exploit. Microsoft denies that charge. But even the GNU/Linux community now worries that its Security Enhanced Linux (SELinux) protocols have a “back door.” The NSA contributed directly to SELinux, as anyone in the GNU/Linux community quickly learns.

So the electronic barricade is not enough. Any war-games theorist could tell you: you can’t withstand siege forever. Senator Rand Paul offers the only way to stop the NSA surveillance program: a legal sortie to lift the siege.

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Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.

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