EFF Finally Gets To Ask Appeals Court To Look At 4th Amendment Question Over NSA's Backbone Sniffing

Privacy

from the constitutional-fun dept

It’s taken many years, but one of the EFF’s longstanding cases against the NSA has finally reached an important milestone: exploring the 4th Amendment question raised by the NSA tapping the internet backbone. This is part of the Jewel v. NSA case that has been going on for years. Back in February (after a lot of procedural back and forth on other issues), the district court rejected the 4th Amendment argument, basically toeing the government’s “but… but… national security!” line. Not surprisingly, the EFF disagreed with the court and appealed to the 9th Circuit appeals court.

The appeal is not just about the 4th Amendment question, but also about the question of standing. Like many surveillance cases, the courts have given the government a bit of a “get out of jail free” card by not letting anyone sue unless they can prove that they, specifically, were swept up by the surveillance. The lower court used this to reject the EFF’s case as well, arguing that the evidence it presented was too “speculative.” On appeal, the EFF argues this is ridiculous, as you can see in the EFF’s opening brief:

First, the court erred in concluding plaintiffs lacked standing. Plaintiffs? evidence, including extensive government admissions, shows that at least some of their Internet communications have been intercepted, copied, and searched, thus establishing their injury and giving them standing. Moreover, because the government defendants put in no evidence creating a genuine factual dispute regarding plaintiffs? standing, plaintiffs are entitled to summary judgment on standing.

And then we get to the meat of the 4th Amendment argument:

Above all, the evidence demonstrates that plaintiffs are entitled to summary judgment on the merits of their Fourth Amendment claim. The suspicionless, warrantless interception and copying of plaintiffs? Internet communications is an unconstitutional seizure, and the subsequent content searching of some of those communications is an unconstitutional search.

Later, the EFF filing leans heavily on last year’s Supreme Court ruling in the Riley case which found mobile phone searches without a warrant to be a 4th Amendment violation:

The Supreme Court recently affirmed that the government?s search and seizure of digital information implicates core Fourth Amendment values and triggers the warrant requirement. Riley, 134 S.Ct. at 2495 (?The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.?). The Court specifically noted the protected privacy interests in Internet browsing: ?Internet search and browsing history . . . could reveal an individual?s private interests or concerns?perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD.? …. The Court went on to detail how a person?s digital information because of its breadth and depth gives a wide-ranging picture of a person?s most private thoughts and actions?even beyond what a general search of their home might reveal….

The Fourth Amendment privacy interests in digital information that the Supreme Court recognized in Riley are fully applicable to the Internet activities of plaintiffs that the government is seizing and searching? including emails, web browsing and searching, live chat, voice calls, social networking, photos, and videos?because of ?all they contain and all they may reveal.?… Indeed, the Court noted that much of the digital information it protected in Riley is increasingly not stored on smartphones themselves but in the Internet ?cloud,? with phones used to access the information over the Internet…. Because communications between smartphones and the Internet ?cloud? often transit the Internet backbone, those communications are subject to the NSA?s interception.

There’s a lot more in the filing that is well worth reading, and you can expect the Justice Department to attack basically all of it. Hopefully the 9th Circuit sees through it and recognizes the core principles at play here. It is difficult to believe that when the Founders drafted the 4th Amendment, that they didn’t think it applied to sniffing up basically every communication “just in case.”

Filed Under: 4th amendment, jewel v nsa, nsa, privacy, surveillance, upstream collection