Ah, but a man’s reach should exceed his grasp,
Or what’s a heaven for?
I don’t think Robert Browning’s exhortation has been lost on the birthers. They’ve grasped in the form of over 200 lawsuits, attempts to rally millions to the nation’s capitol and to sway both the electorate and Congress—none with much of any success.
On the legal front, they have been stymied by the lack of standing. In federal court, unless some statute gives leave, an individual can only bring a lawsuit when they can show standing. To show standing, a plaintiff must allege (1) an “injury-in-fact” that is “concrete and particularized,” and “actual or imminent.” While Donald Trump using his celebrity and the power of the media was able to get Barack Obama to release a copy of his birth certificate, Orly Taitz (et al) was not able to do this through the courts because her interest in the President’s birth certificate is not “concrete and particularized.” Despite what she might believe, she’s nothing special.
While not a birther lawsuit, there is a current lawsuit of interest involving a birther attorney, Larry Klayman, who has made a very great reach suing no less than:
Randall L. Stephenson, AT&T, Jason Katz, Palalk, Marissa Meyer, Yahoo! Inc., Tim Armstrong, AOL, Tony Bates, Steve Ballmer, Skype, Microsoft, Apple, Timothy Cook, Salar Kamangar, YouTube, LLC, Larry Page, Google Inc., Facebook, Mark Zuckerberg, Department Of Justice of the United States, National Security Agency, Keith B. Alexander, Barack Hussein Obama, II, Eric Holder, Sprint Communications Company and Daniel Heese.
So is Klayman attempting to grasp onto the publicity teat of the Edward Snowden revelations about NSA intelligence gathering, or does he have a point?
Klayman and his three co-plaintiffs are attempting what is called a “class action.” A class action allows multiple people to sue multiple people when the cause of action is similar. So how is this type of suit different from the typical ones with the issue of standing? Class actions at the federal level (such as Klayman v. Holder) are governed by FRCP 23 and 28 U.S.C.A. § 1332(d). Here I rely on my legal degree, De Facto Juris Doctor Pro Hac Vice, which lets me look up stuff on the Wikipedia and act as if I know what I am talking about. In my inexpert guy on the Internet opinion, I don’t think that a class action overcomes the issue of standing at all. If no member of the class has standing, the class doesn’t have standing.
Class action privacy lawsuits have been around for some time, going back to a suit against DoubleClick, Inc. over tracking cookies. That case was settled out of court. The question then and now is the whether the loss of privacy is harm when there is no concrete injury. In the case of Low v. LinkedIn, the court said: “Plaintiff was unable to articulate a theory of what information had actually been transmitted to third parties, how it had been transferred to third parties, and how LinkedIn had actually caused him harm.” It would seem to me that the same sort of problem occurs with Klayman’s class action against the NSA (et al) in that he cannot show how the information collected actually damaged him or his co-defendants, nor does he even know that any information was collected on him.
What is interesting is that up to this point, the last thing I thought about doing was reading Klayman’s argument. I trust the legal discussions in the Wikipedia much more than I would Larry Klayman. My trust may be correctly placed, but ignoring what the crackpot says is never a good idea.
According to a paper at Bloomberg Law (that readers here may find instructive), there are two emerging theories of injury, “statutory injury” and “fear as injury.” It would seem that statutory injury is the most promising approach, a violation by the government of a protected right. Arguments based on direct appeal to the Constitution have not worked well in the past (Klayman here invokes the First, Fourth and Fifth Amendments), but also invokes 18 U.S.C. §2702 (a)(1) that deals with the “contents of a communication” and tries to make it apply to “records of communications,” a dubious gambit.
The case was filed in June and the docket is up 29 entries. I don’t see an entry suggesting that the class has been certified by the Court. Oh by the way, Klayman wants $20 billion. For that kind of money, he should have showed up at the Status Conference (but he didn’t).
The opinions expressed in this article should not be considered legal advice. I am not a lawyer.