JURIST Special Guest Columnist Shayana Kadidal, one of the lead attorneys on the Center for Constitutional Rights challenge to the NSA domestic surveillance program, says that the Electronic Frontier Foundation's recent suit for damages against telecommunications giant AT&T for its role in facilitating the program has suggestive parallels in two landmark eighteenth century English cases involving damages claims for impermissible searches…

Last week the Electronic Frontier Foundation, together with one of the country’s biggest class action law firms, filed a motion for a preliminary injunction in their lawsuit against AT&T for its role in carrying out the NSA's warrantless surveillance program. The suit itself alleges that the US government's so-called "Terrorist Surveillance Program" is in fact not focused on terrorists but rather is a "vast fishing expedition" directed at everyone in America — a data mining program using voice recognition software and the NSA's vast array of computers to scan every phone call entering or exiting the United States.

But unlike the suit we have filed, Center for Constitutional Rights v. Bush, the named defendants in EFF's suit are not government officials. Instead, EFF is suing a private party – AT&T – which supposedly enthusiastically helped the government carry out this illegal surveillance. Whereas our suit asks the court to order that the program stop, EFF's also seeks damages against AT&T. And the damages are potentially enormous: the suit is a class action on behalf of the millions of AT&T subscribers, and the statute making this kind of surveillance illegal (the Foreign Intelligence Surveillance Act, FISA) also provides for minimum damages — $100 per day per person — plus punitive damages. Because the allegation is essentially that every single AT&T international call or data transmission over the last four years was intercepted by the NSA with the active assistance of AT&T, the damages could add up to hundreds of millions of dollars.

In searching for parallels to this wonderfully audacious suit — an attempt to stop government lawbreaking by seeking not a court order against the officials responsible but a multi-million dollar jury verdict against their private-sector co-conspirators — I find myself looking back two centuries. Very few Americans today can name one Supreme Court case (Bush v. Gore? Brown v. Board?) let alone one case (People vs. Orenthal J. Simpson?) but in colonial times, most of America could name two cases decided across the Atlantic: Wilkes v. Wood (1763) and Entick v. Carrington (1765). Both dealt with issues less momentous than who would be the next president or whether public schools could continue to be segregated. Instead, they were about the far-less-sexy question of how broad a search warrant could permissibly be.

In Wilkes — an English affair that became “the most famous case in late eighteenth-century America, period” according to one scholar — a London publisher (John Wilkes) who had mocked the King in his writings was pursued for seditious libel (basically, inciting rebellion through one’s writings). A broad search warrant was issued by Secretary of State Lord Halifax — an executive officer, not an independent judge — allowing the officers complete discretion to search through Wilkes’ home and all his personal papers for evidence of any crime by Wilkes or anyone else. Wilkes himself was seized, and ended up locked away in the Tower of London.

Wilkes, eventually freed, sued for damages. He argued his own case, calling the general search warrant issued against him “a ridiculous warrant on the whole English nation.” The judge, Lord Camden, agreed with him, and sent the case to a jury for a verdict. The jurors returned with an award of 1000 pounds in damages for Wilkes; he received even more from Halifax in a suit six years later. The costs to the government in Wilkes’ case and related cases were said to reach as much as 100,000 pounds (roughly ten million dollars in today’s terms).

In some ways, the open-ended search warrant at issue in Wilkes’ case was the NSA data mining program of its day. By banning such general warrants, Lord Camden announced a principle that the colonists would enshrine in the Fourth Amendment, which stated that “no Warrants shall issue [except] upon probable cause” (meaning, roughly, good reason to suspect criminal activity) and that warrants must describe with particularity the places to be searched and the persons or things to be seized. Because the Fourth Amendment requires that a warrant must place limitations on a search, the government could never get a lawful warrant broad enough to allow it to scan every international email or listen in on every international call. Until EFF’s filing, no one had claimed to have evidence that this was what the NSA was doing, but since colonial times everyone has known it was illegal.

The award in Wilkes was an astronomical sum in 1763 — a veritable king’s ransom — and especially shocking given that it was gifted to a spendthrift rogue like John Wilkes. Nonetheless, unlike the old lady who spilled hot McDonalds coffee on herself, both Wilkes and Lord Camden became instant heroes on both sides of the Atlantic after the judgment. Patriotic parents named their children "John Wilkes" (although that doesn’t happen much anymore, for understandable reasons), and the colonists named several counties (the Wilkes Counties in Georgia and North Carolina) and towns (Wilkes-Barre, Pennsylvania, Camden, New Jersey and lovely Camden, Maine) after his lordship and the plaintiff.

Wilkes even made it back into Parliament (he’d been expelled during the seditious libel affair) and from there managed to pass into law in England protections the independent colonists built into their new Constitution: freedom from general warrants, and freedom to criticize the executive during debate in Parliament. (Parliament did so in part because of the outcome of the court cases—in stark contrast to our present situation, where Congress seems eager to snuff out the lawsuits and whitewash the NSA Program by passing a statute legalizing it.)

In some sense, the biggest difference between the AT&T case now and the Wilkes case then is the fact that national security is at stake. John Wilkes was just a harmless clown committing lese-majesté, mocking the crown, but EFF, the critics will charge, is seeking to expose the inner workings of a vital “terrorist surveillance program” to the world by dragging it into court.

Indeed, EFF’s recent filing was quite skeletal: it did not include “a number of internal AT&T documents” because the government claimed these documents might include classified information, and refused to allow even the court to re
view them under seal. But it is easy enough to figure out what the documents must reveal from reading EFF’s original complaint in tandem with last Friday’s filing. The complaint says that AT&T installed or helped the government install equipment in its main facilities that intercepts all or almost all communications that move through AT&T’s circuits. The fact that EFF has moved for relief from the court tells us that they undoubtedly have proof of this. It’s really a shocking revelation: somewhere within the bowels of AT&T’s massive switching stations, a giant bug is delivering every phone call and email of every AT&T subscriber to the NSA. And the government desperately wants this truth hidden from the court and the American public.

The other case well-known to the Colonists, Entick v. Carrington, decided by Lord Camden two years after Wilkes, involved similar arguments for secrecy in the face of a civil claim for damages arising out of a forcible search and seizure. As CCR’s founder Arthur Kinoy put it in his oral argument to the Supreme Court in the Keith case (1972), establishing that President Nixon’s warrantless domestic national security surveillance was subject to the Fourth Amendment:

It stuns me a little bit to hear the arguments made by a representative of today’s executive which were made by the representatives of George the Third in Entick against Carrington. This court is told, as was the British court in Entick, that courts cannot look at the reasons for the searches, that that resides in the special knowledge of the Crown. The British court was told in Entick, you must sanction this general search for — and these are the words from Entick — for reasons of state. For reasons of necessity. We cannot tell you the reasons — for they reside in the head of our executive officer, known as the secretary of state. These were precisely the arguments raised in Entick. Those were the arguments the Fourth Amendment was designed to eliminate.

Then, as now, the people who opposed the claims in Entick and Wilkes labeled the plaintiffs traitors. Let’s hope the judges in the AT&T case and our case don’t agree. And that the regular-Joe phone subscribers who are the plaintiffs in the EFF case become (like Wilkes and Lord Camden before them) heroes too.

Shayana Kadidal is a staff attorney at the Center for Constitutional Rights and one of the lead attorneys on the Center’s challenge to the NSA domestic surveillance program, Center for Constitutional Rights v. Bush.
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