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The Government Spent a Lot of Time in Court Defending NSA Spying Last Year: 2014 in Review

DEEPLINKS BLOG
January 5, 2015

The Government Spent a Lot of Time in Court Defending NSA Spying Last Year: 2014 in Review

EFF was suing the NSA before it was cool. We filed our first lawsuit against the NSA for mass spying in 2008, after the NSA butted into our lawsuit against AT&T for helping the NSA do mass spying.  We’ve also been doing Freedom of Information lawsuits trying to ensure you know what the NSA is up to for many years before that.  But when it comes to fighting unconstitutional spying, the more the merrier. And 2014 was awfully merry: litigation challenging NSA surveillance moved forward in multiple cases, giving the government plenty of time to demonstrate exactly how outrageous its arguments in defense of mass spying are.

EFF continued litigation in our mass spying cases Jewel v. NSA for several spying methods and First Unitarian Church of Los Angeles v. NSA for the mass telephone records collection. We also joined the legal team in Smith v. Obama when the case went to the Ninth Circuit on appeal, and joined Klayman v. Obama and ACLU v. Clapper as amici. Finally, we sued the Department of Justice for failing to respond to multiple Freedom of Information Act requests.

Jewel v. NSA: We closed the year out with a bang, with EFF Special Counsel spending 4 hours on December 19, arguing before the court that the government’s access to your Internet communications via tapping into the fiberoptic cables of AT&T  violates the 4th Amendment as both a seizure and a search. The court has not yet ruled.

Smith v. Obama:  EFF joined forces with ACLU, the ACLU of Idaho, Peter Smith, and Idaho State Rep. Luke Malek in Smith v. Obama, helping Idaho nurse Anna Smith appeal her challenge to bulk telephone record collection. The Ninth Circuit in Seattle heard oral argument on the appeal on December 8, and the court has not yet issued an opinion.

Klayman v. Obama:  The D.C. Circuit Court of Appeals granted us time during oral argument in Klayman. EFF and the ACLU filed an amicus brief in the case on August 20, 2014. We made slightly different arguments from the plaintiff (more on our arguments below), and so we asked for time to elaborate on those in court. You can listen to the oral argument here. No decision has been issued in Klayman yet either.  

ACLU v. Clapper: EFF also filed a brief arguing that “metadata matters,” on behalf of a large number of computer scientists in ACLU v. Clapper, which was heard in early September, 2013.  No decision in that case either.

In Smith and Klayman and ACLU we attacked the applicability of the outdated “third party doctrine” to NSA spying. The “doctrine” says that no one has an expectation of privacy in information they convey to a third party, such as telephone numbers dialed. It comes from the 1979 case Smith v. Maryland. In that case, law enforcement collected numbers from a criminal suspect for three days using a rudimentary pen register. But, as we pointed out, that decision certainly doesn’t encompass bulk collection—and sophisticated analysis—of the detailed telephone records of millions of people suspected of nothing at all.

We also explained in both those cases why collection of metadata is not trivial, pointing out the incredibly sensitive information that can be revealed by collecting and collating such data. We emphasized that aggregation provides context and information to that wouldn’t otherwise exist, and allows analysts to create “social graphs” that map webs of relationships between individuals and groups. And even one phone call, such as an “hour-long call at 3 A.M. to a suicide prevention hotline” can be incredibly revealing.

In First Unitarian and Jewel v. NSA: we also had an intense Spring in our two landmark cases, since we had to rush in to court multiple times to stop the NSA from destroying evidence. The NSA had failed to tell the secret FISC court about our cases, resulting in the FISC court ordering them to destroy some of the telephone records they have collected.  We were able to get that order reversed and the records preserved.  Questions remain, however, about how the NSA is preserving records of its collection from the Internet backbone between 2007 and 2012 and its admitted destruction of the Internet metadata it collected from 2004-2011.

Finally, many of the documents released by the government about the NSA’s spying programs and posted on its Tumblr IContheRecord were released in response to lawsuits brought by EFF—including its most recent release of documents pertaining to President Bush’s “terrorist surveillance program.”

After all of the oral arguments that have happened in the last several months, 2015 promises to be an exciting year, since we’ll likely see opinions in multiple cases.

This article is part of our Year In Review series; read other articles about the fight for digital rights in 2014. Like what you're reading? EFF is a member-supported nonprofit, powered by donations from individuals around the world. Join us today and defend free speech, privacy, and innovation.

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