EFF today asked the Ninth Circuit Court of Appeals to reinstate its landmark case against the federal government for warrantlessly wiretapping millions of ordinary Americans. The case, called Jewel v. NSA is part of EFF's ongoing efforts to Stop the Spying.
In January, the District Court dismissed the case on the incorrect argument that, because so many Americans have had their communications and communications records illegally obtained by the government, no single person has legal "standing" to challenge the ongoing program of government surveillance. This is incorrect because the number of people harmed — here the number of people whose personal communications and communications records were improperly obtained by the government — simply has nothing to do with whether the case can or should be adjudicated.
EFF's brief says:
Unless corrected, the District Court’s ruling risks creating a perverse incentive for the government to violate the privacy rights of as many citizens as possible in order to avoid judicial review of its actions. Neither the Constitution nor the settled statutory structure protecting the privacy of Americans’ communications allows such a result. The District Court’s dismissal of Plaintiffs’ claims must be reversed.
EFF points out that three longstanding statutes protect the privacy of Americans' communications from wholesale, unwarranted government surveillance: Title III (Wiretap Act), Foreign Intelligence Surveillance Act and the Stored Communications Act. It also notes that the Constitution forbids such surveillance. Like EFF's earlier case, Hepting v. AT&T, the Jewel case relies in part on the whistleblower evidence uncovered by former AT&T technician, Mark Klein, detailing a secret facility at the Folsom Street office of AT&T in San Francisco where copies of private customer communications are routinely given to the NSA.
The brief points out that the District Court's dismissal of the case is inconsistent with long-settled law:
The Supreme Court has made clear that the fact that a harm is widely shared does not undercut a plaintiff’s claim to standing: “Once it is determined that a particular plaintiff is harmed by the defendant, and that the harm will likely be redressed by a favorable decision, that plaintiff has standing—regardless of whether there are others who would also have standing to sue.” Clinton v. City of New York, 524 U.S. 417, 435-36 (1998). To hold otherwise “would mean that the most injurious and widespread Government actions could be questioned by nobody.” Massachusetts v. EPA, 549 U.S. 497, 526 n.24 (2007) (quoting United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 687-88 (1973)) (italics omitted).
EFF's other case arising from the warrantless surveillance, Hepting v. AT&T, brought against telecom giant AT&T, is also up on appeal.
The law firm of Keker and Van Nest, the Law Offices of Richard Wiebe and the Moore Law Group all work with EFF on the Jewel v. NSA case.