I'll Take Malkin's Check, Too

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Peter Swire and Judd Legum look at the Stored Communications Act and ponder the possibility that, with the exception of some Qwest-lovin' islamofascists, we're all entitled to a fat check:

The penalty for violating the Stored Communications Act is $1000 per individual violation. Section 2707 of the Stored Communications Act gives a private right of action to any telephone customer "aggrieved by any violation." If the phone company acted with a "knowing or intentional state of mind," then the customer wins actual harm, attorney's fees, and "in no case shall a person entitled to recover receive less than the sum of $1,000."

The Electronic Frontier Foundation is already suing AT&T for cooperating with the NSA's secret wiretapping programs; the Department of Justice claims that such matters are, you know, secret, and wants the case dismissed.

NEXT: Why Can't You Be a Good Telephone Company Like Your Competitors?

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  1. the Department of Justice claims that such matters are, you know, secret, and wants the case dismissed.

    How come they get to keep secrets if we can’t?

  2. Just in the interest of maybe starting some sort of safe list, I e-mailed Sprint-Nextel yesterday about my call records and whether or not they’s sold them to the NSA, and this was their response:

    “Thank you for contacting Sprint together with Nextel. I will be happy
    to assist you regarding the phone call details.
    At Sprint-Nextel, our customers? information is private and their
    privacy is of the utmost importance. We do not sell/provide any private
    information to any agency.
    Sprint does not condone these types of requests and has well-established
    processes to verify the identity of authorized account holders.
    Whenever, such issue is reported to us, Sprint-Nextel launches a full
    scale investigation and engage both our corporate security and legal
    teams.
    If Sprint Nextel ever becomes aware of any such instance wherein a
    customer information has to be provided to any government agency for
    legal purpose, it is Sprint Nextel’s policy to promptly notify customers
    and provide assistance accordingly.

    Thanks and have a nice day.”

    If they are being sincere, Sprint can be added to the Qwest as a safe bet for cellphone service. I just thought we all might share this info with each other.

  3. wonder if he is related to Claire Swire.

  4. Is this Bush’s double-super-secret plan to starve-the-beast? Fake left by failing to veto rampant Congressional spending, go right with a trillions-of-dollars illegal scheme that results in fines totalling gazillions.

  5. Where do I sign up? I’ve been a Verizon customer since The Before Time.

  6. In other news, Congress enacts the Targeted Cell Phone Customer Tax of 2006. “This revolutionary tax of $1000 per cell phone customer will make our nation safer,” say experts.

  7. Would this be the same Justice Department that is being denied security clearances by the NSA — which is too busy granting such clearances to the private telco employees who are implementing these monitoring programs?

  8. Dave, I don’t think so, though that would be. . .interesting 🙂 If you’re talking about the person I think you are, she’s into privacy, too, I daresay.

    I actually worked with Peter a bit when we were both at Ohio State. He’s deep in the world of privacy and played a big role in developing the HIPAA privacy rules. He held some senior privacy position during the Clinton years (I can’t remember the title), but I do recall that he was housed in the same White House agency where I was a fellow–the OMB’s Office of Information and Regulatory Affairs. I once thought about carving out a privacy law niche for myself, but I probably couldn’t have done that and stayed in Tampa, so screw that.

  9. Bloody brilliant headline.

  10. I am a Qwest customer. Oh the dilemma: do I prefer the principle of the thing or do I want $1,000 bucks? Conversely, what about my Verizon Cell phone account (actually two of them!)? Did they give in/out and can I get my money from them?

  11. Anyone know a lawyer in the DFW area that would like to take this case?

    I’ve got the funds to pursue this and would like to see how it plays out.

  12. Never mind here is my plan from ThinkProgress comments:

    #1) Go to your local district court and file a small claim action for $1000 for ?Illegally providing phone records to the NSA? Costs about $30.

    #2) The court clerk will stamp your claim and give you a Case Number and a court date.

    #3) Serve your phone company by mailing the stamped claim by registered mail. Costs about $5.
    #4) Attend the court hearing. A lawyer from your phone company MUST show up to defend. If they don?t show up, you will win $1000 by default. If they do defend, you?ll at least get a chance to have your say on the record, and you might win.

  13. Lee, I saw that episode of King of the Hill, too.

  14. Garth, I’d assume that Verizon Wireless knuckled under with mother Verizon.

    Lee, if you find out, lemme know. Also, for us SBC folks who’ve now been glommed back into AT&T, can we sue for two separate violations? $1000 for SBC, and another $1000 for AT&T? Not that I’m all about frivolous lawsuits, but I make an exception for helping the jack-booted thugs.

    (note to the NSA overlords, the guys who are going after sigint in OTHER countries are clear-eyed, clean-limbed All-American patriots, of the first order, it’s only the ones spying on Americans that wear the jack-boots, just in case you were thinking of giving me one of those Caribbean vacations…)

  15. I thought Libertarians were against tort actions of this sort.

    One day liberals are getting shouted as sue happy, than it’s good?

    Inconsistencies abound. We’re offended, we sue. Good?

    They are offended, they sue. Bad?

    Isn’t the official Libertarian stand to forgo litigation and make use of the free market?

    I’m surprised, I expected litigation to be shouted down. Could someone help me see why litigation here isn’t just another librul plot to help outfits who like to sue? I don’t know, EFF sounds awful librul to me.

    😉

  16. Oh, y’know what, the NSA’s whole raison d’etre is SIGINT, so I don’t know why I was thinking they’d even ask for cellphone records. They’ve already got ’em. >:(

  17. Johnny, I think some of us make exceptions for government action.

  18. Isn’t the official Libertarian stand to forgo litigation and make use of the free market?

    No such beast as an official libertarian stand, I suspect. I would have no problem as a libertarian using the court system to addres a legitimate grievance, and this looks legit.

  19. I love the small claims idea, but I think that small claims only applies to state courts. The Stored Communications Act is a federal statute, and relief must come through Federal District Court. I don’t think small claims filings can be done in Federal Courts. I’d love to be wrong, and if so, please correct me.

  20. Ever since we started hearing about this domestic spying thing, I’ve wondered what possible use the feds thought they’d get out of recordings of thousands of pizza orders, “Hey, boss, there’s a wreck on the freeway so I’m gonna be a little late” calls, and requests to spouses to pick up a loaf of bread and some diapers on the way home. (Don’t get me wrong, the legality and privacy aspects bother me a lot more, but I tried really hard to think like the administration and look for some practical benefit to this.) I’ve finally got it. The NSA is going to fund the war on terror by providing our biggest corporations with market research. The feds will compile careful lists by ZIP code, ethnicity, income level, and political profile of our preferences in pizza toppings, use for various condiments, dry cleaning, birthday gifts for small children, or airlines. They will then sell these lists to large corporations who can then tailor their business plans to the data. Starbucks alone is good for three or four drone aircraft in Afghanistan. If some poor slob gloms onto the bombing-conspiracy needle in the zillion-pizza-order haystack, more’s the better. The purpose never was, however, to find terrorists, which is good because, well, it almost certainly won’t.

  21. Karen the purpose is the same since Nixon, and Bush put it succinctly early in his tenure “there ought to be a limit to freedom”, Santourum came right out and said recently that he didn’t know of any conservatives who were real big on personal autonomy. For some reason, folks don’t actually listen to what modern republicans say. Bush says no to freedom, and for some reason everyone instead hears Goldwater talking about limited governemt, even as Republicans oppose all limits on governemt.
    ~~~~~
    Oh, I don’t know Zoidburg, there is certainly a consistent libertarian stand.

    We are offended. It is ok to sue the .gov.

    They are offended. They are just big .gov slackers.

    Here is a chance for all libertarians to answer the “fireman” question for once and for all. I think most will answer it just like the libruls. Which is actually a good thing. And then….they will all go back to telling us all about the sue happy libruls. Which is a, to say the least, not a surprise.

    Not unlike the old canard that there was any republican who actually supported small government other than Goldwater. (in practice, not just speech, Goldwater stood alone, even Buckley recently has acknwoledged that when he pointed out that Goldwater was against .gov forced pregnancy, and keeping gays out of the military)

    ~~~

    But perhaps I should shut up now and let everyone go back to their fantasies of a republican party run by small government enthusiasts. Really though, you guys need to read more about Spain and Italy in the early part of the 1900’s. Then everything Bush does makes perfect sense.

  22. even Buckley recently has acknwoledged that when he pointed out that Goldwater was against .gov forced pregnancy, and keeping gays out of the military

    If by “.gov forced pregnancy” you mean laws against abortion, Goldwater didn’t come out against them until very late in his career (and maybe not until after he’d left the Senate).

  23. No Seamus, I do not mean “abortion”. I mean government enforced pregnancy.

  24. think that small claims only applies to state courts. The Stored Communications Act is a federal statute, and relief must come through Federal District Court.

    The doctrine of concurrent jurisdiction disagrees. You can sue in state court on a federal claim unless the statute giving rise to the claim expressly disallows state jurisdiction. The AT&T-is-about-to-pay-for-my-biggest-bender-ever statute doesn’t do that, so the action can proceed in state court.

  25. Not that I’m all about frivolous lawsuits

    Why would yor suit(s) be frivolous? Maybe a court would decide that the type of double recovery you want is not what the statute intended and you would lose, but that doesn’t make the argument frivolous.

    Sometimes I get the feeling that the non-lawyers here at HnR think that every lawsut that doesn’t win (and maybe some that do) are “frivolous.” However, “frivolousness” is not that broad a concept, whether you are talking about common usage or legal definitions.

    There is nothing “frivolous” about suing to protect your privacy, even if you sue twice.

  26. Everybody here knows that I am not the biggest fan of lawsuits. I view them as a useful tool under the right circumstances, but I also take a dim view of some of the ways in lawsuits are used.

    Well, this case more than meets my threshold. They handed over confidential information to a gang of dangerous thugs. I hope Verizon is sued into oblivion!

    I’m going to cancel my contract as soon as I find a wireless provider that I can trust. Does anybody know if TMobile is in bed with the commies at NSA? All of the reports that I’ve read only address companies that sell landline service. No word on TMobile. If TMobile told the commies at NSA to screw themselves then TMobile has a new customer.

    And I plan to default on my contract termination fee. If Verizon wants to force the issue I’ll give them $300 worth of gasoline…poured all over their CEO’s desk.

  27. Oh, I don’t know Zoidburg, there is certainly a consistent libertarian stand.

    We are offended. It is ok to sue the .gov.

    They are offended. They are just big .gov slackers.

    From the post:
    The penalty for violating the Stored Communications Act is $1000 per individual violation

    It isn’t whining about being offended, it is concern about an agency of the government breaking the law.
    And a consistent libertarian stand isn’t the same as an official one.

  28. Everyone’s all excited because SUDDENLY the government can monitor our electronic communication? What’s the matter? You don’t like being treated like gun owners in a post-1993 world? All of this SUDDEN excitement is comical. You ladies are responding in exactly the way that CNN and the DNC want you to.

    Malkin can have my check. I’d still like the check that Janet Reno owes me for seven years of violating both my rights and the law.

  29. As an FYI, in terms of cell phone companies complying with NSA, T-Mobile and Verizon Wireless (which is only part owned by Verizon) did not; Cingular and Sprint Nextel did.

    http://www.newsobserver.com/114/story/438542.html

  30. Shaun-

    Thanks for the info. I guess I won’t have to burn down any Verizon Wireless stores.

  31. “What’s the matter? You don’t like being treated like gun owners in a post-1993 world?”

    I don’t understand. I am a gun owner. I didn’t like that part of the Clinton administration one bit. Why should Republicans doing it to me now make me feel better?

  32. I am a law student. I am interested in suing my phone company for giving my records to the federal government.

    I learned that under the 1986 Stored Communications Act, can recover a minimum $1,000 for each violation.

    I have built a wikipage at:

    http://en.wikipedia.org/wiki/User:Travb/Suing_phone_companies_for_handing_over_phone_records

    I welcome you all to contribute any information you have on this wikipedia page. Currently I am interested in suing my phone company in small claims court. I am wondering if this is possible.

    I ask you to please make general comments abut my post here, but on the discussion board at:

    User talk:Travb/Suing phone companies for handing over phone records

    Simply click “edit” to leave your comments, there is no registration requirement.

  33. The NEWS REPORT ABOUT VERIZON IS WRONG: Verizon was involved, the rep in the newsreport was lying:

    Beaverton man sues Verizon Nothwest for $1 billion

    http://www.oregonlive.com/newsflash/regional/index.ssf?/base/news-15/1147550358244440.xml&storylist=orlocal

  34. Form letter for suing phone companies, make $1000:

    http://en.wikipedia.org/wiki/User:Travb/Suing_phone_companies_for_handing_over_phone_records#Form_letter_for_suing_Phone_Companies.2C_make_.241000

    “The court may assess as damages in a civil action under this section the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation, but in no case shall a person entitled to recover receive less than the sum of $1,000. If the violation is willful or intentional, the court may assess punitive damages. In the case of a successful action to enforce liability under this section, the court may assess the costs of the action, together with reasonable attorney fees determined by the court.” (18 U.S.C. ? 2707(c) damages)

    In otherwords, you can sue in civil court, not federal court.

    Hopefully SBC settles the case out of court, I send a message (which I will advertise across the internet for thousands of people to repeat), and I make $1000. Everyone wins, except for the phone carriers who handed over this information illegally to the NSA.

  35. Form letter for suing phone companies, make $1000:

    http://en.wikipedia.org/wiki/User:Travb/Suing_phone_companies_for_handing_over_phone_records

    “The court may assess as damages in a civil action under this section the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation, but in no case shall a person entitled to recover receive less than the sum of $1,000. If the violation is willful or intentional, the court may assess punitive damages. In the case of a successful action to enforce liability under this section, the court may assess the costs of the action, together with reasonable attorney fees determined by the court.” (18 U.S.C. ? 2707(c) damages)

    In otherwords, you can sue in civil court, not federal court.

    Hopefully SBC settles the case out of court, I send a message (which I will advertise across the internet for thousands of people to repeat), and I make $1000. Everyone wins, except for the phone carriers who handed over this information illegally to the NSA.

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