Opinion

FITZGIBBONS: Why Can’t The Feds Say When It’s Legal To Spy On Us?

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The American Civil Liberties Union announced on December 21 that it is suing under the Freedom of Information Act to compel the federal government to expose its rules for when it hacks into people’s digital information-carrying devices such as our cell phones and computers.

The lawsuit seeks “the release of records concerning the government’s use of hacking to pursue ordinary law enforcement investigations,” which information the ACLU complains has been unlawfully withheld after the organization filed FOIA requests with eleven federal agencies. The ACLU lawsuit alleges computer hacking “tools are being used in ordinary day-to-day investigations, as contrasted with national security or foreign intelligence investigations,” and this “presents a unique threat to individual privacy.”

Nine of the 11 federal agencies that received the ACLU’s FOIA requests failed to respond, and the other two “provided cursory responses that were plainly insufficient, in violation of the FOIA,” according to the complaint filed in U.S. District Court in New York. So, it seems the federal government is engaging in lawbreaking — related to other lawbreaking.

The “rules” are supposed to begin with the Fourth Amendment, which has been construed by the courts to protect privacy, but is originally based in property concepts to protect the people’s right to be secure in our persons and certain property. Before judicial imposition of a Fourth Amendment privacy doctrine, unlawful searches or seizures were remedied by property-based concepts such as trespass, and government officials could be personally liable.

Just to give some historic context, in his brilliant treatise, The Fourth Amendment: Origins and Original Meaning, 602 -1791, William J. Cuddihy explains that Lord Halifax lost more money in private lawsuits against his unlawful searches to collect under the Stamp Act than was ever collected.

The ACLU’s FOIA lawsuit, while obviously important to expose what the government considers to be the “rules” about its hacking of American’s computers, won’t result in actual, direct punishment of individual lawbreakers in the government.

Contrast the ACLU’s FOIA lawsuit with a case brought by Sharyl Attkisson, the Edward R. Murrow Award and five-time Emmy Award winning journalist, best-selling author, and host of the acclaimed Sunday morning news show, Full Measure. She alleges her home computers were hacked by the government during the Obama presidency. The Justice Department under President Trump continues to spend taxpayer dollars fighting her lawsuit.

Justice against government lawbreaking doesn’t happen when the Department of Justice refuses to prosecute “its team.” So this gutsy, independent reporter took matters into her own hands. She and her family filed suit against former Attorney General Eric Holder, the Federal Bureau of Investigation, and “unknown named agents of the Department of Justice,” among others.

But the “rules” are rigged to protect government lawbreaking. The trial court said Holder has “qualified immunity,” and refused to grant Attkisson the thorough discovery one needs to uncover even the simplest facts about clandestine government lawbreaking. Her case was dismissed on chicken-and-egg grounds such as her complaint not naming the unidentified government spies. Attkisson has appealed, and a hearing is now scheduled for late January in the Fourth Circuit Court of Appeals.

Attkisson understands the larger implications of her lawsuit for other Americans and the Bill of Rights. While she was with CBS News during the events of the government trespasses on her computers, she was a thorn in the side of the Obama administration. Now-NBC reporter Dylan Byers wrote for Politico in 2013:

“The Obama administration won’t answer the CBS News correspondent’s questions because her investigations — into Benghazi, Fast and Furious, Solyndra — often reflect negatively on it…. For years, Attkisson has been one of the few mainstream reporters pursuing critical stories about the Obama administration…. Attkisson is a dogged reporter, driven by a strong skepticism of government. Producers at CBS News once nicknamed her ‘Pit Bull,’ a source said, because she gets on a story and won’t let go.”

Five independent forensics exams, however, have uncovered various aspects of the unauthorized remote surveillance of Attkisson’s computers using government proprietary methods, including efforts to cover up the spying and intrusions. And, internal emails at the private security company Stratfor disclosed by WikiLeaks imply a larger effort:

Obama Leak Investigations (internal use only – pls do not forward)

Brennan is behind the witch hunts of investigative journalists learning information from inside the beltway sources.

Note — There is specific tasker from the WH to go after anyone printing materials negative to the Obama agenda (oh my.) Even the FBI is shocked. The Wonder Boys must be in meltdown mode.

At a day-long continuing legal education course in September this year about the Fourth Amendment and government surveillance, I was on a panel with Sharyl, where she explained harrowing details about the government’s hacking.

Besides rigged rules to protect government lawbreaking, Ms. Attkisson is at another disadvantage. Tax-paid government lawyers know how to make cases brought by private parties succumb just because of the costs. It’s almost as if that’s in a manual for government lawyers.

No reporter rights or civil liberties organizations had offered to assist her with her litigation. So, following that Fourth Amendment seminar, two dozen nationally known civil liberties advocates and whistleblowers cutting across ideologies and professions signed onto a GoFundMe page to raise money going directly to Attkisson so she can continue financing her lawsuit. Citizens who are outraged about government’s hacking Americans’ computers and want to help can go to the Sharyl Attkisson 4th Am Litigation page and donate.

Both the ACLU and Attkisson lawsuits are important, but only one is seeking real, immediate consequences for lawbreakers within the government. And, illegal government hacking won’t ever stop until there are real consequences for the individual lawbreaker.

Mark J. Fitzgibbons is president of corporate affairs at American Target Advertising, Inc., America’s oldest and largest conservative direct marketing and fundraising agency. He has litigated constitutional cases, and is co-author with Richard Viguerie of the e-booklet The Law That Governs Government: Reclaiming The Constitution From Usurpers And Society’s Biggest Lawbreaker.


The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.