Former Justice Department prosecutor and founder of Judicial Watch Larry Klayman filed the first federal class-action lawsuit against Verizon and the Obama administration Monday, in response to the last week's publication of a secret court order asking Verizon to hand over millions of customer phone records.
Klayman also said he will file a second class-action lawsuit in the U.S. District Court for the District of Columbia against government officials and the nine companies listed in the leaked National Security Agency slideshow, including AOL, Apple, Facebook, Google, Microsoft, PalTalk, Skype, Yahoo!, and YouTube, all of whom are participants in the government's top-secret PRISM program.
Both lawsuits name as defendants as defendants President Barack Obama, Attorney General Eric Holder, NSA Director Keith Alexander, and Federal Judge Roger Vinson, who approved the leaked court order.
"This case challenges the legality of Defendants' participation and conduct in a secret and illegal government scheme to intercept and analyze vast quantities of domestic telephone communications," says the lawsuit against Verizon. It accuses the government and Verizon of violating customers' "reasonable expectation of privacy, free speech and association, [and] right to be free of unreasonable searches and seizures and due process rights."
Klayman said he hopes the two lawsuits will be considered together as companion cases.
Despite the shocking details leaked by 29-year-old NSA contractor Edward Snowden including NSA's ability to "watch your ideas form as you type," any legal action taken does face the daunting question of standing. In February, the Supreme Court ruled that Americans lacked standing in Clapper v. Amnesty International USA, a case that challenged an amendment to the Foreign Intelligence Surveillance act that resulted in the surveillance of persons inside the United States.
According to Justice Samuel Alito, this was a "highly speculative fear." Alito wrote in the majority opinion that "respondents fail to offer any evidence that their communications have been monitored" under the expanded version of FISA.
A legal journalist and constitutional adviser to the National Constitution Center said, "The near-universality of the surveillance here does not count as evidence of who was monitored, in a factual sense. These new revelations are not sufficiently different from the program at issue in the Clapper decision, so that decision very likely dooms any challenge."
Given the secrecy of the PRISM program for so long, there is an inherent challenge for anyone to show they were being monitored. According to American University law professor Stephen Vladeck, "Even with what is now publicly known about the program, individual plaintiffs will have the same problem ... proving that their communications, in particular, have been, or will be, intercepted."
However, there may be hope for the Verizon lawsuit.
Klayman told U.S. News and World Report that within a few months "the court will likely define the 'class' the suit seeks to represent by ruling that 'everyone's in' or by allowing Verizon customers to either opt-in or opt-out of the class."
There are currently three named plaintiffs so far: California private investigators Michael Ferrari and Matt Garrison, and Pennsylvania couple Charles and Mary Ann Strange, whose son Michael, a Navy SEAL Team VI member, died in a helicopter crash in Afghanistan in 2011.
"Somebody has to be held accountable for my son’s death," said Charles Strange. "Thirty brave Americans, the biggest loss in the Afghan war. And that’s when I started asking questions, that’s when my phone got tapped."
Strange also claimed he heard tapping noises while on the phone and received odd texts shortly after his son's death.
“I called Verizon, ‘I have a text 001 and 002’ and I called them up and I said ‘who’s this?’ and they said it’s somebody listening in from the United States, and someone from Afghanistan,” Strange said.
The lawsuit could potentially seek billions of dollars in compensatory and punitive damages and hopefully halt government surveillance.
Although it is difficult to predict which way it will go, the class-action lawsuit could stand a chance and pass through the first hurdle of standing if more Verizon customers with similar monitoring experiences come forward and join the lawsuit.
Sen. Rand Paul (R-Ky.) also announced plans to file a similar class-action lawsuit against Verizon and the internet companies.
"I'm going to be asking all the internet providers and all of the phone companies: Ask your customers to join me in a class action lawsuit," Paul said. "If we get 10 million Americans saying we don't want our phone records looked at, then maybe someone will wake up and something will change in Washington."