But how do you hold them accountable? The traditional remedies in Anglo-American courts, before qualified immunity and similar doctrines metastasized into impenetrable shields protecting government officers, come from tort law. But torts require a showing of damages. What are your damages from the NSA collecting all your metadata, or even from recording a conversation? Most people in the U.S. consent to letting companies like Microsoft or Google not only track all their online contacts, but literally analyze their e-mail for tracking and targeting purposes, and do it in returns for services that have an effective market value (to the user) of nearly $0.

IIRC, Scalia once said that he would ditch the fruit of the poison tree doctrine to return to old Common Law tort remedies. At Common Law the remedy for an illegal search was typically a claim of trespass, for which the remedy was often a token sum, such as $1, imposed on the officer, not much of an incentive to abstain from illegal searches, but right in line with the effective economic losses of property trespass or invasion of your digital privacy.

So when people talk about "accountability" in the realm of privacy law they seem to be referring to something beyond simple compensation for immediate harms; they seem to want to impose some sort of penalty. But what kind of penalty is appropriate to impose on some government bureaucrat just "doing his job"; and when entire departments of bureaucrats might need to be penalized en masse? Maybe we should penalize the supervisors, but at some point those supervisors are political appointees doing the bidding of elected politicians, who are supposed to be accountable through elections.

We already have doctrines like fruit of the poison tree that are crafted to disincentive illegal government prosecutions. An illegitimate guilty verdict is at least a quantifiable loss of liberty. But if there are no economic damages, no reputational damages, no illegitimate prosecutions, nor similar quantifiable consequences, I'm not sure exactly what we should be doing except electing into office politicians who will ensure our existing laws are honestly applied, and who will rid the statute books of unnecessary exceptions to the letter of the law.

> At Common Law the remedy for an illegal search was typically a claim of trespass, for which the remedy was often a token sum, such as $1, imposed on the officer, not much of a disincentive to avoid illegal searches

Presumably there was some sort of punishment for ordinary citizens trespassing, and it was much higher than one dollar. So this seems more like a common law way of formalizing state corruption rather than an actual equitable outcome.

Damages aren't limited to purely financial. That's a modern myth to disempower individuals in favor of commercial entities. Take for example, insurance compensation where if you simply pay a company to make something right, they'll come up with copious line items to justify customary costs. But if you DIY to have control over the end result, you'll end up getting screwed with your time being considered "free" rather than compensated at your hourly rate.

Loss of privacy is itself a damage, in the same way loss of limb is with no commensurate loss in earnings. You have a good point that someone who willingly hands over their information to Surveillance Valley has much less of a claim of harm. But surely if I take costly steps to preserve my privacy (eg spending several hours to setup a microg phone), then those steps demonstrate that privacy has value to me. That's to say nothing of the long tail of damages from surveillance databases being leaked to the wider public, or resulting in wrongful arrest or prosecution (both also not generally compensated these days, or per common law).

To me, accountability should look like criminal sanctions for government employees. Just as it's illegal for me to steal from a store, it's illegal for the government to violate my rights - the two should be similarly criminalized. There's leeway for actions carried out with a good faith belief of legality, but that defense vanishes the moment they form conspiracies to insulate themselves with secrecy rather than remaining open and directly accountable to the People.

> Damages aren't limited to purely financial. That's a modern myth to disempower individuals in favor of commercial entities

Not really, tort law is very old, and the idea of "actual damages" is pretty well formed. "Reputational damages" exists in libel.

Privacy in English and Scottish common law is .. developing. e.g. https://www.pinsentmasons.com/out-law/news/common-law-right-... / https://www.supremecourt.uk/docs/speech_100825.pdf (the huge transformative effect of the human rights act, which does explicitly contain a right to privacy)

Being surveilled is uncomfortable but making a formal legal argument against it in the US context is tricky. The US does too much social change through court decisions, anyway; this would be far better as an explicitly political argument.

>What are your damages from the NSA collecting all your metadata, or even from recording a conversation?

Well, here we have the argument of the 'little man'.

If I am wahern, the answer to your question is: probably not much.

If I am Elon Musk, the answer may surprise you. The damages from retaliation by members of the elite NSA club, and their military-industrial cronies, could be HUGE.

Are we willing to live in that sort of society?

This is not a good basis of support for State Secrecy - which has, incidentally, ALWAYS been a corrupting influence in every single society which makes it a keystone policy of conduct.

Secrets are corruption. States, which do not exist unless they are continually perpetuated as open truths, become utterly corrupt the moment they start keeping secrets - while becoming resolute and strong when secrecy is dissuaded.

>qualified immunity and similar doctrines

If what you are doing requires qualified immunity or similar, it is a reactive, failing doctrine, not a productive one. The problem is obviously further upstream, perhaps in the cause for secrecy in the first place.

NSA need to keep secrets, why? Fix that why.

> But what kind of penalty is appropriate to impose on some government bureaucrat just "doing his job"

Public money, public code. We need to generate more Commons (like Free Open Source Software). Stop using government funds to give to private corporations for black-box solutions.

The same type of penalty that would be appropriate to impose upon anyone else just "doing their job".

- A security worker being told to throw someone of color out of the store because management thinks "those people" cause problems.

- A mob enforcer breaking someone's kneecap because they didn't pay their "bill".

Somewhat on end of extreme, but... if your job has you doing things that are wrong, then you are doing wrong. The fact that someone else said to do it, or said that it's ok, doesn't make it ok.

In the absolute best case scenario, the NSA has been created to ensure US hegemony, also known as destroy the freedoms of anyoune outside America. In reality, it was probably created to ensure the current hegemony is largely unchanged, meaning it will trample on the freedom of US citizens too.

The entire organization needs to go. The article written by an intelligence agency insider just wants to try and ensure only foreign rights are violated, but that should not be acceptable either.

It’s horrible for Americans, too.

Yes, they wrote:

> it will trample on the freedom of US citizens too.

> The entire organization needs to go.

Abolish the (secret) police.

The only non-US act I know who's covered Me and Bobby McGee ("Freedom's just another word...") is Dame Olivia Newton-John, AC, DBE.

As they sing in the Expanse's asteroid Belt:

    "Feriting" bera owta wowt, fo nating mo fo pish
    Nating showxa nating, sili mebi na fire