Homeland Security

Government Fights to Trap EFF’s NSA Spying Case in a Catch-22

Network cablesCindy Cohn and Karen Gullo
Electronic Frontier Foundation
April 11, 2019

The U.S. government admits—and, of course, it’s common knowledge—that the NSA conducts mass, dragnet surveillance of hundreds of millions of Americans’ communications. It has done so via a series of different technical strategies and legal arguments for over 18 years. Yet the Justice Department insists that our legal fight against this spying is bound by a Catch-22: no one can sue unless the court first determines that they were certainly touched by the vast surveillance mechanisms of the NSA, but the court cannot decide whether any particular person’s email, web searches, social media or phone calls were touched by the surveillance unless the government admits it. Which, of course, it will not do.

At a federal court hearing last month in Oakland, California for our Jewel v. NSA case, we took on this circular argument. EFF Special Counsel Richard Wiebe reviewed the vast trove of direct and circumstantial evidence showing our clients’ communications likely swept up by the NSA dragnet surveillance—this establishes legal “standing.” The interception of communications was first revealed in 2006 by a whistleblower working for AT&T in San Francisco, Mark Klein. Klein demonstrated, with expert assistance, that AT&T tapped into the high-capacity fiber optic cables that carry Internet traffic and copied all of the data flowing through those cables for the NSA. A 2009 draft NSA Inspector General’s report confirms that telecom companies including AT&T gave the NSA access to customers’ communications. Justice Department officials and government agencies have acknowledged its existence going back a decade. Ex-NSA contractor and whistleblower Edward Snowden leaked documents describing the spying and authenticated a key document for the court when the government refused. And just this past year, an additional whistleblower and several other experts have submitted statements explaining that the surveillance program likely touched our clients’ communications.

We also noted that it’s not necessary to absolutely establish that our client’s communications were touched by the surveillance to prevent dismissal. We must only demonstrate that it is more likely than not that our clients’ communications were touched by the NSA’s three programs of telephone record collection, Internet metadata collection, and Internet backbone surveillance. Given the mountain of evidence that we have presented and the admitted scope of the program, there is almost no chance that our clients’ communications—like the communications of millions of innocent Americans—weren’t touched by the government's programs.

“Direct and circumstantial evidence are both enough for standing,” Wiebe told the court. “The public evidence, combined with classified evidence, will remove any question about standing.”

We also directly addressed the government’s state secret claims, which were first rejected by the Court in 2006 but which the DOJ continues to assert. We got a boost from a recent court ruling in the U.S. District Court of Appeals for the Ninth Circuit, Fazaga v FBI, which flatly rejected the application of the state secret privilege in electronic surveillance cases. It instead found that Congress required the courts to use a part of the Foreign Intelligence Surveillance Act, 50 U.S.C. 1806(f), to decide whether the alleged spying was lawful. That same law should be used in Jewel.

Justice Department lawyers fought back hard, claiming that our evidence wasn’t enough. They said that the court cannot rely on the draft NSA Inspector General’s report because the NSA has refused to formally authenticate it — despite never claiming it was fake. Because the government refused to formally acknowledge the document, Snowden submitted a declaration in our case confirming that he had seen the report when he was an NSA contractor. DOJ attorneys told the court that Snowden was “not competent” to testify.  As for the Ninth Circuit ruling, DOJ attorneys said it doesn’t apply because our plaintiffs must first prove that they were surveilled — and they cannot do that unless the government agrees.

Rather circular, no? Our clients can’t sue because a court isn’t allowed to rule on whether they have standing because that would harm national security. And they can’t test the government’s claim of national security, because they don’t have standing.

If U.S. District Court Judge Jeffrey White rules that he is indeed trapped by the government’s Catch-22 argument, then EFF will be required, once again, to take the case to the Ninth Circuit to have the decision reversed.

Despite the government’s ongoing efforts to kill it, Jewel v. NSA has come further than any case challenging NSA spying. At this point, 18 years in, two of the three programs at issue in the case have been stopped due in part to public outcry. The third was radically scaled back. At least two programs—telephone records and Internet metadata—were reportedly abandoned in part because, despite significant financial costs and ongoing harms to the rights of millions of Americans, they showed no appreciable benefit in protecting anyone.

Yet the government’s strategy of continually throwing up roadblocks has kept us from getting to the heart of the matter: the NSA has flipped the basic rules of government access to your private papers upside down. Instead of gaining access only when they have specific basis to believe that you’ve done something wrong, the NSA first collects or scans our communications en masse, then sorts out what they really want second. This is a digital version of a “general warrant”— sweeping authority to search Americans without any suspicion — which were used in colonial times and rejected by the nation’s founders. John Adams even claimed that the opposition to general warrants fueled the American Revolution.

Now the government has resorted to arguing that what is common knowledge in the world, and what the European Courts have now ruled about multiple times, must never be spoken of in an adversarial process in an American court of law. That’s not right, and we’ll keep fighting for our clients to have their day in court.

 

Cindy Cohn is the Executive Director of the Electronic Frontier Foundation. From 2000-2015 she served as EFF’s Legal Director as well as its General Counsel. Karen Gullo is an award-winning writer who has reported on public affairs, business, government, and law for more than a decade. This article first appeared at the Electronic Frontier Foundation and was used with their permission.

 

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