Court Rejects EFF's Arguments Over NSA Internet Surveillance

Privacy

from the keep-appealing dept

One of the key ongoing lawsuits challenging the NSA’s warrantless surveillance of Americans and their internet usage is the Jewel v. NSA case that actually predates the Snowden revelations. The specific case involves challenges to the so-called “upstream collection” under Section 702 of the FISA Amendments Act. Specifically, this is about the NSA tapping telco fiber directly (as Mark Klein revealed concerning AT&T) and sifting through all the traffic for “relevant” (defined loosely) information. The EFF is handling the case against the government in Jewel, and argued that such collection violates the 4th Amendment. Unfortunately, the court has now rejected that argument, refusing to grant summary judgment to the EFF, instead granting partial summary judgment to the US Government.

Unfortunately, as in past attempts to challenge US surveillance, much of the issue comes down to one of standing. The individuals suing don’t have evidence that their personal information was collected, so they don’t necessarily have standing to sue (so says the US government). Of course, even when there is evidence, the government often has a way to weasel out of the legal challenge anyway. And, unfortunately, we’re right back in that situation with the Jewel case. Since this case was over the AT&T internet taps, the EFF noted that AT&T customers should have standing, but the court isn’t convinced that’s enough:

However, the question whether Plaintiffs can establish standing to pursue their Fourth Amendment claim against the Government Defendants for constitutional violations goes beyond whether they, as individuals and AT&T customers with Internet communications, can proffer evidence of generalized surveillance of Internet communications. Although the public and admissible evidence presented establishes that Plaintiffs are indeed AT&T customers with Internet communications and would fall into the class of individuals surveilled, the evidence at summary judgment is insufficient to establish that the Upstream collection process operates in the manner in which Plaintiffs allege it does.

In their attempt to establish the factual foundation for their standing to sue on their Fourth Amendment Claim, Plaintiffs rely in large part on the declarations of Mark Klein and their proffered expert, J. Scott Marcus, as well as other former AT&T and NSA employees to present the relevant operational details of the surveillance program. Plaintiffs assert that the declarations support the contention that all AT&T customers? Internet communications are currently the subject of a dragnet seizure and search program, controlled by or at the direction of the Government. However, having reviewed the record in its entirety, the Court finds the Plaintiffs? evidence does not support this claim.

Plaintiffs principally rely on the declaration of Klein, a former AT&T technician who executed a declaration in 2006 about his knowledge and perceptions about the creation of a secure room at the AT&T facility at Folsom Street in San Francisco. However, the Court finds that Klein cannot establish the content, function, or purpose of the secure room at the AT&T site based on his own independent knowledge…. The limited knowledge that Klein does possess firsthand does not support Plaintiffs? contention about the actual operation of the Upstream data collection process. Klein can only speculate about what data were actually processed and by whom in the secure room and how and for what purpose, as he was never involved in its operation. In addition, Plaintiffs? expert, Marcus, relies exclusively on the observations and assumptions by Klein to formulate his expert opinion. Accordingly, his testimony about the purpose and function of the secure equipment at AT&T and assumed operational details of the program is not probative as it not based on sufficient facts or data…. The Court finds that Plaintiffs have failed to proffer sufficient admissible evidence to support standing on their claim for a Fourth Amendment violation of interference with their Internet communications. In addition, without disclosing any of the classified content of the Government Defendants? submissions, the Court can confirm that the Plaintiffs? version of the significant operational details of the Upstream collection process is substantially inaccurate.

And, unfortunately, the court further accepts the DOJ’s claims that going any further in this case will lead to the terrorists winning or something:

In addition, having reviewed the classified portion of the record, the Court concludes that even if the public evidence proffered by Plaintiffs were sufficiently probative on the question of standing, adjudication of the standing issue could not proceed without risking exceptionally grave damage to national security. The details of the Upstream collection process that are subject the Government?s assertion of the state secrets privilege are necessary to address the defenses against Plaintiffs? theory of standing as well as to engage in a full and fair adjudication of Government Defendants? substantive defenses against the Claim. The Court has reviewed the classified brief submitted by the Government and finds that its legal defenses are persuasive, and must remain classified.

Disclosure of this classified information would risk informing adversaries of the specific nature and operational details of the Upstream collection process and the scope of the NSA?s participation in the program. Notwithstanding the unauthorized public disclosures made in the recent past and the Government?s subsequent releases of previously classified information about certain NSA intelligence gathering activities since 2013, the Court notes that substantial details about the challenged program remain classified. The question of whether Plaintiffs have standing and the substantive issue of whether there are Fourth Amendment violations cannot be litigated without impinging on that heightened security classification. Because a fair and full adjudication of the Government Defendants? defenses would require harmful disclosures of national security information that is protected by the state secrets privilege, the Court must exclude such evidence from the case.

And, with that, the judge, Jeffrey White, rejects the 4th Amendment claim. I’m guessing that the EFF will appeal.

Filed Under: doj, faa, fisa amendments act, jewel v nsa, nsa, section 702, standing, state secrets, surveillance, upstream collection
Companies: eff