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JordanMurovGoodmanFirstPaper 4 - 10 Jun 2018 - Main.EbenMoglen
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Deconstructing the Surveillance Apparatus | | | In the event that a surveillee, as it were, was able to clear the standing hurdle, there would still be the question of a remedy. If the current surveillance apparatus by its very existence indeed does “chill speech” or effect warrantless searches on a vast scale, then it seems reasonable that a class of individuals could extract some form of damages. Acknowledging that, as with standing, it’s an inauspicious jurisprudential moment to advocate for the expansion of a Bivens-type remedy, perhaps a fully-aired accounting of the scale of surveillance—and the potential capabilities of that scale—would impress upon the Court the need to revisit recent decisions.
Damages in these cases would hopefully act as a kind of judicial method of removing appropriations from the federal surveillance apparatus, fulfilling the political role where Congress has failed. The exact details of this need to be hashed out (e.g., how to determine compensatory damages or whether there would be a possibility of punitive damages), but the overall idea would help implement the desired outcome: dismantling the surveillance apparatus. Already empowered to act as the final arbiter of constitutional boundaries, the Court should take up this permissible, if expansive, solution to enforce those limits.
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Improving this draft involves increasing its focus. One can say in
two or three sentences why evidentiary exclusion is not a sufficient
control over mass surveillance. That this is a political issue
requires only a sentence or two more. Then we confront the issue
the present draft ducks: if there is no consensus in the political
branches for additional legislative limitations, there is no
reliable route to judicial checks on the system, because the legal
basis for judicial action is absent. (A point that has been made by
several judges in the course of deciding existing cases, including
Judge and Professor Jerry Lynch.) Bivens actions, like exclusion,
are oriented towards control of individual acts of invasion, not the
structural reorientation of society around comprehensive
surveillance. Without a legal basis for these damages actions you
propose, there aren't any actions, any damages, or any leverage for
change. Nor is there any reason to suppose that the consensus
absent in the political branches is present in the judiciary.
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