If the government is surveilling you, can you sue them?

This answer is never going to be totally clearcut (hello, Law!), but there is one important test you have to pass, in order to sue the government for surveillance.

Do you have a JUSTICIABLE claim? (the legalese for, are you able to bring a claim in court against the government for what it did)

1. Are you able to prove that the government was actually surveilling you OR your specific community?

(If you can’t prove they are actually surveilling you, you may be able to say that there is a likelihood that that you are (or will be) a target of surveillance — but that is hit or miss)

2. Have you suffered an injury because of this surveillance?

And it can’t just be any old injury that you are unhappy about. You have to show an injury that is ‘cognizable’, that the court will recognize.  What counts as cognizable? Hmmm… courts differ on this count.  Some factors that make it more likely your injury will count as cognizable:

– it’s not a hypothetical or conjectural injury, but it’s actually happened or could happen imminently

– it’s a concrete, particular, specific injury and not something too general

– if it is Objective rather than Subjective, meaning that it is not entirely in your head or self-invented, but actually has some demonstrable real-world consequence — there are Tangible Damages

– if the injury you’re suffering is ‘reasonable’, meaning that a reasonable person in your shoes would also be suffering this same thing

– if your injury is because of some activity by the government that is ‘regulatory, proscriptive or compulsory’ (which is really not likely to include surveillance — this is a tricky category to meet in a surveillance situation)

– Some examples of a cognizable injury: you’ve lost your job because of the surveillance, you are being harrassed, you’ve lost money or customers because of it, you haven’t been able to practice your religion, you haven’t been able to speak freely

And even if you can show you have been surveilled and its caused a cognizable injury, there is still the matter of overcoming the government’s defense.  Generally, you can expect the government to say that the interests of the government in maintaining the surveillance are SO GREAT and SO  NECESSARY that they are a trump card.  Even if you can sue, this defense may beat your claim.

Leave a Reply

Your email address will not be published. Required fields are marked *