As alluded to by the old Chinese proverb, we live in interesting times. The ACLU has an article on its website which is blunt but not inaccurate: “The NSA is turning the internet into a total surveillance system.” Once it came to light that the NSA was snooping on virtually every digital communication in the country, it came up with the defense that Americans need not worry because it couldn’t search its own e-mails — despite bulk searches being something quite common in the corporate sector — and despite the fact that they are searching e-mail content to begin with. They also lied about collection efforts in the first place.
Back in more sane days, the courts actually took a stand against intercepting wire messages without warrant. Since it doesn’t look like any legal authority is yet willing to reign in the NSA, the question becomes whether you can make lemonade out of the NSA lemons.
The lemonade for litigators would be the fact that every electronic communication — cell phone call, e-mail, or text — in recent memory is sitting in the hands of the NSA. What an amazing resource! No more “he said, she said” about phone conversations in dispute in a lawsuit. No more problems with “accidental” spoliation of key e-mails by a corporate defendant. In essence, the NSA could offer its own version of “home stenographer” to litigators willing to pay for the service. Imagine how quickly some law suits would settle — if not go away.
Given that communications in your case didn’t involve any national security secrets, it seems as if you could file a FOIA request to obtain copies of communications relevant to your case. The only hitch is that NSA has been rejecting requests made under FOIA. What a lost opportunity. The average American believes that litigation is too expensive and time consuming and NSA could have done its part to help.
All this begs the question, if we can’t have lemonade then why do we need the lemons.