One of the most outrageous ways that the government has violated our Fourth Amendment rights against general seizures and searches has been through its system of tapping into the fiber optic cables of America’s telecommunications companies. The result is a digital dragnet—a technological mass surveillance system that subjects millions of ordinary Americans to the seizure and searching of their online correspondence, conversations, web searches, reading and other activities as they travel across the Internet. This tapping isn’t just about metadata—it includes full content searches of Americans’ communications, at the very least any international communications involving a website or a person who is abroad.

Today, in our landmark case Jewel v. NSA we finally ask the United States Court of Appeals for the Ninth Circuit Court whether the core purpose of the Fourth Amendment—providing Americans with security against indiscriminate seizures and searches of their papers and effects—is violated when the government copies and searches in bulk the communications passing through the Internet’s key domestic junctions, without a warrant and without probable cause or any showing of individualized suspicion. We’ve created a graphic to help the court understand how this works.

The road to get here has been long and tortuous, and the government used every procedural trick it could think of to prevent the courts from considering whether the Constitution allows this mass surveillance. The government isn’t done yet, either. Just a couple of weeks ago it filed yet another motion to try to get the court to delay consideration of the case. In addition, the government still claims that, despite having admitted the core pieces of our claims, our clients don’t have “standing” and that everything is too secret to be considered by the courts. It’s possible that the Ninth Circuit will let one of these dodges work, and we’ll have to try yet again to get the Constitution applied to the NSA’s activities.

But this is the first time since the whistleblower Mark Klein gave EFF undeniable evidence of the Internet tapping in 2006 that we’ve squarely asked the court of appeals to rule that the government tapping into the fiber optic cables violates the Fourth Amendment. It’s a big day, and we’ve worked for it for a long time.

EFF’s Long History of Trying to Stop NSA Spying in the Courts

EFF first sued over the tapping into AT&T’s fiber optic cables in 2006 in a case called Hepting v. AT&T. That case was moving along well, so well that the telephone companies and the government went to Congress and it created a highly unusual doctrine called “retroactive immunity” for the companies, effectively killing our case.

We responded by filing Jewel in 2008 on behalf of San Francisco Bay Area resident Carolyn Jewel and most of the same AT&T customers. Over the years, EFF has amassed a mountain of evidence about the backbone spying, with the centerpiece of documents provided by former AT&T telecommunications technician Mark Klein showing that the company routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA. Now, thanks to Edward Snowden, core evidence in the case also comes from the government itself, which has, in response to the Snowden revelations and the uproar from the public, confirmed in public reports and filings in Jewel that it searches the content of much of what it collects as part of its Upstream activities without a warrant.

“For more than a decade, the NSA has been conducting a dragnet invasion of millions of Americans’ privacy by setting up a system that copies and continuously sifts through their online activities,” said EFF Executive Director Cindy Cohn. “While this program of mass surveillance may have once been a secret, the government has now fully admitted that it copies communications wholesale from the Internet backbone and searches the full content of them. It’s more than time for a court to rule that this violates the Fourth Amendment.”

“The Founders were clear that the core purpose of the Fourth Amendment is to protect Americans against the kind of indiscriminate rummaging through their private communications that is occurring as part of Upstream,” said EFF Special Counsel Richard Wiebe. “If this basic guarantee in the Fourth Amendment is to survive into the digital age, there can be no exceptions for mass, suspicionless searches that never end.”

In February 2015, a federal district court judge ruled that EFF had not introduced enough evidence to support our clients’ standing to challenge the Upstream program and that the government’s reliance on secret evidence prevented the court from ruling on whether the program was constitutional. This is an appeal of that ruling.

As our brief makes clear, Jewel is based entirely on public evidence, including the government’s extensive admissions contained in the public court files and in a report by the Privacy and Civil Liberties Oversight Board (PCLOB). The government has tried to prevent judicial review of its behavior for a long time now. We’re looking forward to the Ninth Circuit denying them further procedural gameplaying and finally squarely addressing whether this shocking mass surveillance is consistent with a country that protects the rights of its people to be “secure in their papers and effects."

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