Americans Deserve Their Day in Court About NSA Mass Surveillance Programs

By David Greene

EFF continues our fight to have the U.S. courts protect you from mass government surveillance. Today in our landmark Jewel v. NSA case, we filed our opening brief in the Ninth Circuit Court of Appeals, asserting that the courts don’t have to turn a blind eye to the government’s actions. Instead, the court must ensure justice for the millions of innocent Americans who have had their communications subjected to the NSA’s mass spying programs since 2001.

Just this spring the Ninth Circuit Court of Appeals ruled in a case called Fazaga v. FBI that the state secrets privilege does not apply to cases challenging domestic electronic surveillance for national security.  Instead such cases must go forward to the merits of whether the spying is illegal. Today we asked the appeals court to apply that same reasoning to Jewel v. NSA and reverse a judge’s order of dismissal so our clients, and the American people, can finally have their day in court.

We argue in our brief:

For over a decade, plaintiffs have sought a determination of whether the government’s acknowledged mass surveillance of the Internet communications and telephone records of hundreds of millions of Americans violates the Constitution and federal statutory law. But the district court refused to do so, defying Congress’s express command that such claims be decided on the merits—a command recently confirmed by this Court.

This appeal challenges two separate orders of the district court dismissing first our Fourth Amendment claims, and later our statutory claims. Both dismissals were based in substantial part on the district court’s belief that the legality of the spying could not be adjudicated, even under protective court procedures, without revealing to the Judge at least, secret information which the government claims would harm national security.

The district court dismissed our Fourth Amendment claims in February 2015, finding that Jewel and the other plaintiffs could not prove on the available public evidence that they had been caught up in the spying. And the district court dismissed our remaining statutory claims in April 2019, claiming that it would be impossible to analyze the legality of the mass spying without revealing state secrets, and ruling again that the plaintiffs could not prove they were spied on based on the public evidence.

As we argue, the district court’s decisions wrongly deny the American people a ruling on whether the spying programs are legal:

The district court’s dismissal hands the keys to the courthouse to the Executive, making it impossible to bring any litigation challenging the legality of such surveillance without the Executive’s permission.  It blinds the courts to what the Executive has admitted: the NSA has engaged in mass surveillance of domestic communications carried by the nation’s leading telecommunications companies, and this surveillance touches the communications and records of millions of innocent Americans.

At stake are the statutory and constitutional bulwarks created to protect “the privacies of life” from the prying eyes of an all-seeing government.  Carpenter v. U.S., __ U.S. __, 138 S. Ct. 2206, 2214 (2018) (citation omitted). From the founding of the Republic, the Executive’s power to surveil has required robust constitutional and statutory limitations—including searching judicial review of the legality of surveillance—to ensure the privacy and freedom of all Americans.

Our opening brief makes three main arguments:

  • First, the state secrets privilege cannot prevent consideration of whether the spying is legal because Congress created special secrecy procedures to enable courts to decide the legality of electronic communications surveillance. The district court was required to use those procedures (contained in section 1806(f) of FISA). Indeed, the Ninth Circuit ruled just this past February that the state secrets privilege does not apply in these types of cases. We urge the court’s panel of judges to apply the same rule here.
  • Second, even if the secret evidence is excluded, there is ample public evidence, including extensive government admissions, from which a judge could conclude that it is more probable than not that plaintiffs’ phone records were collected, that their Internet communications were intercepted and searched, and that metadata records of their Internet communications were collected. This is all that is needed to establish legal “standing” to bring the lawsuit; the trial judge must thus consider the legality of the spying programs.
  • Third, the Ninth Circuit should rule that the government’s interception of our clients’ Internet communications off of the Internet backbone without a warrant violated the Fourth Amendment.

Amicus briefs in support of our position will be filed next Friday and the government will file its responding brief in the weeks after that. After briefing is completed, the court will schedule a hearing, likely not for several months, with a decision thereafter.

This fight has been long and hard, and it’s likely to continue for some time. But stopping the modern-day version of the general warrants that the founders of the U.S. fought against is tremendously important. EFF is determined to ensure that the network we all increasingly rely on in our daily lives—for communicating with our families, working, participating in community and political activities, shopping, and browsing—is not also an instrument subjecting all of our actions to NSA mass surveillance.

David Greene, Senior Staff Attorney and Civil Liberties Director, has significant experience litigating First Amendment issues in state and federal trial and appellate courts and is one of the country’s leading advocates for and commentators on freedom of expression in the arts. David was a founding member, with David Sobel and Shari Steele, of the Internet Free Expression Alliance, and currently serves on the Northern California Society for Professional Journalists Freedom of Information Committee, the steering committee of the Free Expression Network, the governing committee of the ABA Forum on Communications Law, and on advisory boards for several arts and free speech organizations across the country. David is also an adjunct professor at the University of San Francisco School of Law, where he teaches classes in First Amendment and media law and an instructor in the journalism department at San Francisco State University. He has written and lectured extensively on many areas of First Amendment Law, including as a contributor to the International Encyclopedia of Censorship. Before joining EFF, David was for twelve years the Executive Director and Lead Staff Counsel for First Amendment Project, where he worked with EFF on numerous cases including Bunner v. DVDCCA. David also previously served as program director of the National Campaign for Freedom of Expression where he was the principal contributor and general editor of the NCFE Quarterly and the principal author of the NCFE Handbook to Understanding, Preparing for and Responding to Challenges to your Freedom of Artistic Expression. He also practiced with the firms Bryan Cave LLP and Hancock, Rothert & Bunshoft. He is a 1991 graduate of Duke University School of Law.

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