This might be one way around the catch-22 the government's created as far as
standing to sue over intercepts goes. All XMission subscribers now know they
might have been intercepted. If Pete can't tell them they weren't the
target, then whether they were actually intercepted or not they have to take
steps to protect themselves. That, the cost involved there, would be
damage that would grant standing whether or not you were the actual
target. And it was damage that was only incurred because of the government's
action in imposing the gag order on XMission. Since the damage doesn't depend on
whether you were actually the target, it doesn't depend on something you can't
prove. You can show from the quotes from Pete that you knew you might be a
target, you can show from his inability to tell you you weren't that you did not
and could not know that you didn't need to take any steps. The only way the
government might claim you lack standing is to a) confirm that you weren't an
actual target and b) claim on the record that they do not prohibit ISPs from
talking about the intercepts. The second would of course mean that ISPs could
disclose the details of such intercepts, which the government won't let happen.
And if they limit the gag order to only not disclosing it to the target, it's
easy to find out who the target is by every customer inquiring and seeing who
gets the "we can't discuss that" response. [ Reply to This | Parent | # ]
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