Rand Paul is suing the government over the NSA’s bulk data collection program, on behalf of every American with a phone:
The complaint charges Obama, as well as Director of National Intelligence James Clapper, National Security Agency Director Keith Alexander and FBI Director James Comey, with violating the Fourth Amendment to the U.S. Constitution by collecting and storing Americans’ phone data on a massive scale. … Joined by the conservative and libertarian non-profit FreedomWorks and former Attorney General of Virginia Ken Cuccinelli, Paul submitted the complaint to the U.S. District Court for the District of Columbia Wednesday morning.
Serwer explains the significance of a class action suit:
“A class action would be Rand Paul, not just suing on his own behalf, but on behalf all people, known and unknown, who are similarly situated,” said Stephen Vladeck, a law professor at American University. “Ostensibly, he could be suing on behalf of all Americans, or all Americans hypothetically affected by these court orders.”
By making his challenge to the NSA’s metadata program a class-action suit, Paul is reiterating his point that the metadata program amounts to a “general warrant,” or the government giving itself permission to search any person at any time without individual suspicion or evidence of a crime, in violation of Americans’ constitutional rights.
But Adi Robertson says the suit is “doomed” for that very reason:
Paul says he expects the case to quickly rise to the Supreme Court and that “the American people will win.” Unfortunately for the American people, he’s almost certainly wrong. So far, damages and injury from NSA data-gathering have been hard to establish even on an individual basis. Several groups have brought lawsuits against the administration by saying a particular individual organization or person has suffered because of surveillance. But even for Verizon customers, who have a leaked court order to back them up, there’s no definitive way to tell whether the NSA actually collected metadata from them, and the claim is too hypothetical for many judges. If Paul wants to go forward with the suit, he’ll need to calculate and prove similar damages for every single member of his class.
None of which, of course, have stopped Paul from trying to recruit 10 million people to “join the class action lawsuit” by sending their name, email address, and zip code. In theory, this shows that a large number of people have suffered similar harm and lets people opt into the suit, although nobody joining will be able to provide any information on whether they’ve been spied upon (and therefore qualify.) In practice, the charitable interpretation is that it’s essentially a petition of protest. The uncharitable interpretation is that it’s a fundraising and campaigning effort.
Allahpundit thinks it’s a smart political move:
Whether a Fourth Amendment suit will prevail depends on which judge they draw. Remember, within 12 days of each other in December, a federal district court judge appointed by Bush found the NSA’s data-mining program unconstitutional while another judge appointed by Clinton upheld it. Assuming both rulings are affirmed on appeal, it’s a cinch that this will end up in the Supreme Court. Paul’s shrewdly getting on board now, before it takes off, so that he’s in the middle of things as it moves up the legal food chain.
Massimo Calabresi, however, sees a big risk:
The risk for Paul is not so much the legal outcome as a potential change in the politics of the underlying issue. Where the law can be slow to develop and harden, political change can be rapid and unpredictable. Paul risks getting on the wrong side of an issue that is still playing out in the public mind. … For now, Paul’s play may work all the better for having mainstream Republican and Democratic opposition. But public opinion is fickle and it doesn’t take much to imagine a turn of events that could leave Paul exposed to charges he put politics ahead of national security.
Read the full complaint here.
The Dish 