You Can Now Win $500,000 in Damages for Improper Surveillance – But Only If You Are a U.S. Senator

​When it was recently revealed that Special Counsel Jack Smith used a grand jury subpoena to secretly access the phone records of eight U.S. Senators and one Member of the House, we were outraged.

We quoted Chief Justice John Roberts in Carpenter v. United States (2018) that “this Court has never held that the Government may subpoena third parties for records in which the subject has a reasonable expectation of privacy.”

We’ve also stood fast by the principle that a right is only a right if it has a remedy, which necessarily includes the ability to sue government officials who violate your constitutional rights.

Concerning the spying on Members of Congress, we wrote: “Senators, like everyone else, deserve a reasonable expectation that their phone records are private.”

Why, then, are so many House Republicans and Democrats up in arms about a last-minute provision stuck into the short-term funding bill that President Trump signed on Wednesday night? That provision, now law, allows individual senators to be awarded up to $500,000 in retroactive lawsuits against the government if their data was sought or obtained without them being notified.

Executive branch surveillance of senators is concerning because it directly impacts the independence of the legislative branch, the functioning of democracy, and thus ultimately the rights of us all. But does this have to mean that the rest of us should be treated as chopped liver?

Think about it:
​

• You cannot sue or in any way impede the dozen federal agencies – ranging from the FBI to the IRS and Department of Homeland Security – for purchasing your most sensitive personal digital data and examining it without a warrant.

 

• You cannot sue if the National Security Agency uses the “Make Everyone a Spy” law to ask your gym, office landlord, or church to hand over records of your communications carried by free Wi-Fi systems.

 

• You cannot sue if a federal prosecutor makes a similar intrusion into your phone logs but keeps it secret with a Non-Disclosure Order (NDO).

Only U.S. senators can sue for being improperly surveilled. And the money they can collect now they can stick right into their bank accounts. The Senate in the last Congress refused to join the House in passing the NDO Fairness Act, which would have restricted the government’s currently unlimited ability to issue gag orders to digital and telecom companies to prevent them from telling you that your records have been accessed.

About this last-minute Senate maneuver, Rep. Chip Roy (R-TX) said, “There’s going to be a lot of people, if they look and understand this, are going to see it as self-serving, self-dealing kind of stuff.”

As we approach next year’s reauthorization of FISA Section 702 – a surveillance authority enacted by Congress for foreign surveillance – Congress will have a golden opportunity to debate a number of reforms that can protect the rights of constituents.
​
Remember us?

DONATE & HELP US PROTECT YOUR FOURTH AMENDMENT RIGHTS