One of the moment’s political hot potatoes involves the disclosure that the NSA had received warrants from the Foreign Intelligence Surveillance Court (nicknamed the FISA Court) to obtain meta-data on just about everyone’s phone conversations.
Part of the shock, I think, comes from the realization of what the government uses FISA warrants for. When the executive branch aims to reassure the public about electronic surveillance, it often takes the form of telling the rest of us that we are safe from abuse because such surveillance is subject to warrants. But when most people think of a warrant for surveillance, they think about the government getting court authorization to watch one person, or track one phone number – that kind of thing. The FISA warrants we just learned about were issued to get data about hundreds of millions of phone calls.
This brings to mind a different and perhaps more practical question. For those of us who are not the government, wiretapping is always illegal. Intercepting someone’s communications, or disclosing the content of intercepted communications, is a violation of federal law on wiretapping and electronic surveillance. It is a crime punishable by up to five years in jail. Of more interest to those eavesdropped on, the law also creates a private cause of action in civil court – in plain English, you can sue the eavesdropper. So if your competitor falls that low, there is a legal remedy out there. Unless, of course, the guilty party is the government. Warrant or not, Congress has made the United States government immune from civil suits for eavesdropping. As we’ve mentioned a few times before, it’s good to be king.