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

Legal Issues

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.

Filed Under: jewel v nsa, nsa, secrecy, section 706, surveillance
Companies: eff