Feds Want To Keep A Big Part Of Their Argument Against Lawsuit Over Internet Spying A Total Secret

from the because-nsa dept

The big Jewel v. NSA case is still moving forward. This is the pre-Snowden lawsuit against the NSA over its tapping of fiber optic cables. We now understand that this was part of what the NSA refers to as “upstream collection” under Section 706 of the FISA Amendments Act, but most of us recognize it for what it really is: and that’s snooping on tons of internet backbone traffic in the hopes of finding something interesting. This broad “upstream” collection is immensely problematic, and the Justice Department has bent over backwards time and time again trying to kill the case — without success so far. The EFF has recently filed its latest reply brief (pdf) in support of its motion for a partial summary judgment, responding to the government’s (not surprising) opposition (pdf). The EFF has a clear summary of its arguments on its blog, which is worth reading. Here are two key arguments. First, making it clear that snooping on internet traffic is a form of “seizure” raising the 4th Amendment question:

We explain that the act of copying entire communications streams passing through splitters at AT&T facilities is an unconstitutional seizure of individuals? ?papers? and ?effects.? This should be obvious?our ?papers? today often travel over the Internet in digital form rather than being stored in our homes?but the government contends that unless it physically interferes with individuals? possession of some tangible property, it cannot ?seize? anything. This is not so. If it were true that conversations could not be ?seized? except by taking possession of physical objects, all warrantless wiretapping (where ?recording? is a form of ?copying? communications) would be constitutional.

This argument is especially troubling in the Internet age, since the government appears to be claiming that it could make a copy of all Internet communications as long as it did so without physically taking possession of any storage media. No way. The Fourth Amendment doesn?t protect just tree pulp or hard drives. It protects your ability to have control over who sees the information carried in your papers and effects. And by copying everything, the government is plainly ?seizing? it.

And also, hitting back on the ridiculous “special needs” argument that the DOJ really likes these days:

The government’s dangerous ?special needs? argument, which apparently the Foreign Intelligence Surveillance Court of Review adopted with regard to the targeted surveillance objected to by Yahoo!, is something the Internet public needs to be aware of. The government is essentially claiming that because there are bad foreign actors online, it should get a free pass from complying with the Constitution whenever it claims a ?foreign intelligence? need, and that it gets to do so regardless of how many innocent Americans may be caught up in its net. Or to put it more bluntly, the government is basically saying that its intelligence needs should trump the Constitution, and that no one using the Internet should be able to have a private conversation or engage in private web surfing or information gathering without the government having access.

However, there’s another separate filing which the EFF’s blog post just mentions in passing, but which I think may be even more interesting. It appears that, in addition to its initial opposition brief, the government also filed some other information in secret, raising serious due process questions. Thus, EFF is looking to strike those secret filings (pdf) from the record:

The filing of an ex parte, in camera memorandum of points and authorities is improper. The government has submitted the classified declaration of ?Miriam P.?, and there is no legitimate reason for the government to supplement that secret evidence with the aid of a secret brief that it has privately provided to the Court. The government has repeatedly argued its assertion of the state secrets privilege in public briefing throughout the history of this case. Moreover, to the extent the secret brief argues the merits of plaintiffs? Fourth Amendment claims, it has no possible justification at all. The government has not attempted to demonstrate that any possible good cause exists that could justify the extraordinary violation of due process created by its submission of private, secret legal argument?let alone that such good cause exists here.

As the filing notes, even in cases where parties are allowed to file documents in secret, they first need to effectively get permission from the court, and the DOJ didn’t bother — it just “nonchalantly” waltzed in and gave the court the documents in secret.

Even if a secret submission had some legitimate basis, the government was required to make an administrative motion pursuant to Local Rule 7-11 seeking leave to file a secret ex parte, in camera brief before it filed any such brief. On such a motion, the government would have had the burden of demonstrating both legal authority and good cause to support its secret filing. Instead, the government nonchalantly filed its secret ex parte, in camera brief here as if it were a matter of right, depriving plaintiffs of any opportunity to oppose the motion. Plaintiffs would have opposed any such motion. Because the government?s conduct prevented plaintiffs from objecting prior to the filing of the government?s secret brief, plaintiffs now move to strike it after the fact.

Plaintiffs are aware of no statute, rule, or other authority permitting the government to file legal argument to which plaintiffs do not have access and to which plaintiffs cannot reasonably respond, as it has done here, nor is there any good cause for filing a secret, ex parte, in camera brief here. Although there is authority allowing the filing of an ex parte, in camera official factual certification in support of a claim of state secrets privilege, that authority does not permit the government?s secret legal briefing here. And in fact, there is good cause to reject the government?s filing: the government?s filing of a secret brief is contrary to the state secrets privilege doctrine and to fundamental notions of due process….

Yet again, we see how the government handles these kinds of cases. Deny, obfuscate and hide. It’s as if the DOJ has such a weak argument that it really doesn’t want to make it publicly, because it knows it will lose.

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Comments on “Feds Want To Keep A Big Part Of Their Argument Against Lawsuit Over Internet Spying A Total Secret”

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Anonymous Coward says:

but the government contends that unless it physically interferes with individuals’ possession of some tangible property, it cannot “seize” anything.

So, let me get this straight — the government’s position is that if I don’t actually interfere with anything “tangible” (album, cassette, CD, 8-track, etc.), then I’m not actually stealing, pirating, or otherwise doing any harm under the law? I’m cool with that.

Anonymous Coward says:

NSA Dirt

Who thinks the secret filing could be some dirt on the judge kindly supplied by the NSA wire taps?

Since we know the NSA captures such information, is their any doubt they would use it?

The government’s problem is that their lies have caused them to lose all benefit of the doubt. So we now all assume the government has no ethics and will do whatever it takes to win. The DOJ needs to provide proof they are not trying anything shady in every case.

Anonymous Anonymous Coward says:

How dare you!

It is our (written, unwritten, public, secret; no matter) policy that we are in pursuit of control over anyone who is not us (or wealthy enough to hurt us through deliberate bribing of congress persons through campaign contributions and/or political advertisements) that dare stand in our way of such pursuit, will recieve both our contempt and as much due process (as we define it which depending upon the circumstances of the instant case) as we can shove down the throats of said standees.

Anonymous Coward says:

reminds me of how the government has/are acting in the ‘Mega’ case. they have played things so badly, expecting to get the extraditions, court cases and all assets over and done with in a heartbeat. instead, they have broken more laws than Dotcom was accused of breaking and still refuse to show what evidence they have!! sound familiar

Anonymous Coward says:

but the government contends that unless it physically interferes with individuals’ possession of some tangible property, it cannot “seize” anything.

The trouble with this argument in the Dotcom case is they didn’t just take the evidence, they then turned it over to the entertainment people before the statue of limitations ran out. Evidence gathered for a supposed crime is no longer held in confidence.

The next issue with this is that Kim is accused, not convicted. Yet our government seized his financials in the US and claimed they will keep it as the result of criminal actions.

Lastly, the government has literally killed a business with no conviction at all over it’s legality. Megaupload will not be back. It’s dead Jim. So where is the recourse if Kim is not guilty from the government’s actions?

justme says:

There constant abuse of the “national security” exception make’s it obvious that what they are doing is illegal and they know it.

If they continue to be successful in preventing every ‘legal challenge’ to there actions. Then we cease to be a nation that is ruled by laws and the judicial branch becomes irrelevant!

Anonymous Coward says:

Re: Re: Re:

Point taken. What i was really getting at is that the judicial branch was at best nullified or as you point out complicit it these actions.

There should be absolutely nothing that should be denied review of the court and counsel . It can be sealed but everything our government does must be open to review and challenge or the judicial branch not longer functions as it was intended.

Jessica says:

Dirty Rotten government.

All I have to say is, I live in Amerikwa, and I literally hate the government more than Billy Graham hates the devil. To me, the US gov’t is the devil. They are the Manichean pole of pure evil incarnate in our world. They are an archon of evil. This government gets away with everything! There is no crime under the sun that our government does not get off the hook for DAILY! They will get away with this crime as well, I guarantee it. The evil, crooked sitra aher of a federal judge will not even deign to blink an eye at the governments misconduct in these legal proceedings, and certainly won’t blink an eye at any of the underlying crimes it has committed.

Uriel-238 (profile) says:

Re: Re: Re: Dirty Rotten government.

Richard Dawkins found fame and fortune through the missteps of institutionalized religions, but no Dawkins’ fire against religion started specifically from the 9/11 attacks. He explains so in a 2002 lecture.

Before this, Dawkins was an evolutionary biologist, hand would have been quite content to focus on his academic work and sell dozens of copies of books rather than millions.

No, Dawkins just had and expressed well an annoyance that resonates with many other people. He wasn’t born into this outrage, but found it on a day that fueled outrage in all of us.

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