Dragnet NSA Spying Survives: 2015 in Review
Secret mass surveillance continued to spark global controversy this year, yet the National Security Agency’s dragnet programs unconstitutionally monitoring Americans are stretching into their second decade. Ignited by news reports in 2005, eight years before Edward Snowden’s revelations blew the lid off illegal and unconstitutional domestic spying in 2013, mounting concerns around the world about the threat to free expression made 2015 a watershed year in the battle to restore privacy.
Federal courts issued a series of competing decisions this year. Some acknowledged severe, ongoing abuses of millions of Americans and our fundamental rights. Others effectively turned a blind eye to government misconduct, agreeing with government arguments that the serious constitutional questions about these programs simply cannot be considered by the judiciary, even if they impact millions of innocent Americans.
Meanwhile, Congress finally took action to address some intelligence abuses, passing the USA FREEDOM Act this spring. While reforms in the USA FREEDOM Act remained less than needed to restore the rights and democratic principles undermined by mass surveillance, this summer was only the second time in US history that Congress cut back the powers of the intelligence agencies. Repudiating longstanding congressional deference to secrect mass surveillance, the USA FREEDOM Act reflects a growing transpartisan recognition of the need for oversight, transparency, and privacy-protecting reforms.
Beyond the courts and Congress, popular concerns surrounding mass surveillance continue to resound around the world, and all across America. With so little having been done to assuage those concerns, rest assured that EFF—along with the global civil society harmed by mass surveillance—will be back in 2016.
Dueling court decisions
In October, a District Court in Maryland ruled to dismiss a complaint challenging mass surveillance filed by the Wikimedia Foundation. Jenna McLaughlin wrote for The Intercept that “courts allowed the federal government to escape judicial oversight simply by insisting that national security matters should remain secret.” My colleague Mark Rumold put it another way:
This game is mighty familiar to us at EFF, but that doesn’t make it any less troubling. In our system, the courts have a fundamental obligation to conclusively determine the legality of government action that affects individuals’ constitutional rights. For years now, plaintiffs have tried to get the courts to simply issue a ruling on the merits of NSA surveillance programs. And for years, the government has successfully persuaded the courts to rely on standing and related doctrines to avoid doing so.
Jewel v NSA, First Unitarian Church v NSA, and Smith v Obama in the Ninth Circuit
A week after the Wikimedia ruling, the U.S. Court of Appeals for the Ninth Circuit heard oral argument in Jewel v. NSA, a case EFF filed in 2008. The government has repeatedly delayed consideration of the case toavoid addressing the merits of our complaint. This year, government lawyers argued to the court that it couldn’t yet decide whether it could decide whether the government tapping into AT&T’s fiberoptic cables violated the Fourth Amendment.
Seriously. The truth is stranger than any fiction.
Sadly, on December 18, the Ninth Circuit agreed with the government. An appellate panel ruled that it will not rule on the Fourth Amendment issues arising from tapping into Internet cables even though the government admitted doing so, but will instead wait for the lower court to complete its examination of the entire case before considering an appellate review.
Five years after we filed Jewel, and responding to further revelations in 2013 by whistleblower Edward Snowden, we filed First Unitarian Church v NSA on behalf of nearly two dozen organizations from across the political spectrum.
First Unitarian expanded on Jewel not only by citing new evidence, but also by focusing attention on the First Amendment right of association. The Supreme Court has long recognized a right to anonymous membership in, and association with, organizations. That right is simply incompatible with a mass surveillance regime that tracks every telephone call made to or from those organizations.
Unfortunately, the court has also delayed considering First Unitarian. Representing millions of Americans among their combined memberships, our clients have awaited a hearing date for over two years since we finished preliminary briefing before the District Court in early 2014.
In contrast, presiding over Smith v Obama, U.S. District Judge B. Lynn Winmill reached a decision in June 2014, dismissing a challenge by a neonatal nurse from Idaho. EFF joined as counsel in the appeal of that case, along with the ACLU. We continue to await an appellate ruling from the Ninth Circuit, having briefed the court on how recent legislation relates to our claims.
Klayman v Obama in the DC Circuit and Wikimedia v NSA in the District of Maryland
Sadly, 2015 saw two other cases in which courts fell for a procedural shell game the government has been pushing.
Back in 2013, responding to a complaint by conservative lawyer Larry Klayman, District Judge Richard Leon wrote a thoughtful opinion acknowledging how mass surveillance offends constitutional rights. Judge Leon examined the allegations of whistleblowers, and the government’s admissions. He went on to explain how Smith v Maryland, a prior 1979 case allowing limited surveillance under specific circumstances, could not justify a contemporary dragnet:
As in Smith, the types of information at issue in this case are relatively limited: phone numbers dialed, date, time, and the like. But the ubiquity of phones has dramatically altered the quantity of the information that is now available, and more importantly, what that information can tell the Government about people’s lives.
Reaching beyond specific cases to consider the underlying constitutional principles and historical context, Judge Leon went on to write:
I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval… the author of the Constitution, James Madison… would be aghast.
The government appealed Judge Leon’s decision to the D.C. Circuit, where EFF’s Cindy Cohn argued in 2014 alongside plaintiffs’ counsel. The D.C. Circuit overruled Judge Leon this August in Klayman v Obama.
The D.C. Circuit’s Klayman ruling effectively held that the plaintiffs lacked the right to challenge the program in court. It reflected judicial confusion about the underlying facts, misapplying the Supreme Court’s regrettable 2013 ruling in Clapper v Amnesty Int’l. In Clapper, the Supreme Court dismissed a challenge brought by journalists and human rights advocates because they were unable to provide evidence that they, specifically, would in fact be secretly monitored by the government.
Snowden gave that evidence to journalists, who publicly documented the NSA’s pervasive collection of telephone records. Moreover, the government strenuously defended the program, claiming a need before several congressional oversight committees to collect all (or nearly all) telephone records to get “the entire haystack.” Yet in Klayman the D.C. Circuit continued to evade a decision on the merits by ruling that no individuals other than Verizon Business Services customers during a three month period could bring suit, even though customers of other services, during other times, were obviously subjected to NSA collection.
In October, two months after the D.C. Circuit’s disappointing decision in Klayman, yet another federal court—this time, a district court in Maryland—cited the same sort of standing concerns as the basis to dismiss a lawsuit challenging mass surveillance even before considering any evidence.
In that case, the District Court repeatedly cited the Supreme Court’s 2013 decision in Clapper v Amnesty in ruling to dismiss Wikimedia v. NSA. The court bent over backward to describe widespread “allegations” as “depend[ing] on suppositions and speculation, with no basis in fact,” despite the ample record provided by documents published around the world and the government’s own admissions.
ACLU v Clapper in the Second Circuit
There were, however, bright spots in the courts. The most potentially influential was a May 2015 decision by the U.S. Court of Appeals for the Second Circuit in ACLU v Clapper. The government did not challenge the ACLU’s standing, so the court did not consider that issue, nor did it resolve any constitutional claims.
But in a stinging rejection of the government’s statutory arguments, the Second Circuit sustained the challenge. It held that in Section 215 of the PATRIOT Act—which the government had interpreted in secret—Congress never authorized the mass telephone surveillance program revealed by Edward Snowden.
Rather than accept executive secrecy as a reason to insulate a program from judicial review, the Second Circuit ruled that executive secrecy precluded any legislative intent supporting the program. Responding to government claims that Congress approved NSA mass surveillance when voting to reauthorize the USA PATRIOT Act in 2010 and 2011, the court explained that:
Congress cannot reasonably be said to have ratified a program of which many members of Congress—and all members of the public—were not aware… Practically speaking, it is a far stretch to say that Congress was aware of the FISC’s legal interpretation of §215 when it reauthorized the statute in 2010 and 2011.
Announced in early May, just a few weeks before a congressional deadline to reauthorize section 215, the Second Circuit’s Clapper ruling seemed at first to suggest broader reforms. The House of Representatives passed a compromise bill to extend the telephone program with some limited reforms, but the Senate let the reauthorization deadline pass for a few short days before ultimately resuscitating mass telephone surveillance under a new statute: the USA FREEDOM Act.
Important but limited policy reform
Until this summer, the last time Congress had taken legislative action addressing NSA surveillance was in 2008, when it expanded the Agency’s powers through premature and deferential amendments to the Foreign Intelligence Service Act (FISA) of 1978.
Controversially supported by then Senator Barack Obama, the 2008 FISA amendments blocked a series of cases proceeding through the courts (including Hepting v. AT&T, an EFF lawsuit filed in 2006) that threatened to expose corporate complicity in illegal government surveillance by U.S. intelligence agencies. The 2008 FISA amendments also unwound a series of crucial reforms imposed by Congress in the 1970s after the Church Committee’s investigation.
In that context, 2015’s USA FREEDOM Act represented an overdue course correction. That’s in part why EFF initially supported it in early versions, particularly the version introduced in October 2013. After the important Second Circuit decision raised hopes for Congress to consider stronger reforms, EFF withdrew our support for the USA FREEDOM Act, but did not oppose it.
The version ultimately adopted by Congress in June 2015 enabled new oversight, and placed some real restrictions on NSA surveillance powers. For instance, it requires the government to limit its collection of call records to those chosen based on a “specific selection term.”
Most significantly, the law increased transparency at the secret FISA court responsible for approving surveillance requests. It created a cadre of amici curiae (friends of the court) to brief the judges when considering novel legal questions, and directed the executive branch to declassify “significant” FISA court opinions. Instead of hearing from only one side in secret, the FISA court will now hear opposing views at least sometimes, and will have to declassify at least some of its opinions.
Time will tell how meaningful the new law will prove to be.
Already, however, the first appointed amicus curiae—a former federal prosecutor—has written to counter government arguments before the FISA court. In November, he wrote to the court to inform its consideration of a key issue in EFF’s cases arising from the government’s obligation to preserve evidence supporting our challenges:
The government's unwillingness to address its various litigation positions, some of which appear to have contributed to the prolonged hold [preventing the destruction of evidence], speaks volumes. For example, its resort to incanting the state secrets privilege seems rather energetic given the robust public discussion of this program…”
The USA FREEDOM Act’s transparency provisions and process improvements make its passage an important moment and a starting point for future reform.
At the same time, much remains to be done. The USA FREEDOM Act repudiated an era of congressional permissiveness and imposed important reforms to marginally increase transparency. Congress took aim at curbing surveillance abuses for the first time in 40 years.
The political tide, however, began to turn back before the year was out. Within months, Congress moved to authorize new surveillance powers in the Cybersecurity Information Sharing Act, whose substantive provisions were included in an omnibus spending package approved in late December.
What We’re Planning for 2016
Strong, uncompromised encryption makes us safe
In late 2015, responses to horrific terror attacks in Paris took the form of what the New York Times described as “a wretched yet predictable ritual after each new terrorist attack: Certain politicians and government officials wast[ing] no time exploiting the tragedy for their own ends.” The Times went on to condemn premature and erroneous claims by CIA Director John Brennan (whose record hardly suggests trustworthiness) and made clear that privacy-protecting encryption played no role in the Paris attacks.
As we’ve always said, and the Times made clear:
[I]ndiscriminate bulk data sweeps have not been useful. In the more than two years since the N.S.A.’s data collection programs became known to the public, the intelligence community has failed to show that the phone program has thwarted a terrorist attack. Yet for years intelligence officials and members of Congress repeatedly misled the public by claiming that it was effective.
Fighting against canards and red herrings from the intelligence establishment is nothing new to EFF. We’ve been doing this for over 20 years. We hope in 2016, however, to help journalists, policymakers, and judges understand why access to strong, uncompromised encryption enhances security instead of undermining it. The idea that privacy and security are opposing values should be long dead.
Stopping dragnet Internet surveillance under FISA Section 702
In 2016 we also will move to keep the pressure on government Internet surveillance under Section 702 of FISA. While the 2015 congressional policy debate centered on telephone surveillance under Section 215 of the PATRIOT Act, Internet surveillance is no less troubling and equally (if not even more) susceptible to politicization and abuse.
Section 702 is currently set to expire at the end of 2017, making the next two years a crucial period for establishing some long overdue transparency into how the government both interprets the law, and uses the technologies implementing it. Greater transparency—for instance, through proposed reforms to restore order and common sense to the broken and bloated classification system—can help set the terms of debate in Congress and in the public.
Those terms have shifted dramatically over the past two years.
In June 2014, the House of Representatives voted by a more than 2-1 margin in favor of an amendment to the 2015 Department of Defense appropriations bill that nearly cut funding for NSA backdoor searches. The same year, the leaders of both the House and Senate Intelligence Committees—which Congress created in the 1970s to oversee the intelligence agencies after catching their hands in the constitutional cookie jar—announced bipartisan proposals to entrench domestic NSA spying powers. Yet Congress fended them off.
At the end of 2015, only 18 months later, some presidential candidates are criticizing others’ support for even the meager intelligence reforms of the FREEDOM ACT. Some of those same figures, using their seats in the Senate, have proposed legislation to delay implementation of the Act’s limited reforms to Section 215. Others championed new surveillance powers masquerading as cybersecurity tools.
Section 702, meanwhile, hasn’t even been the subject of a meaningful congressional debate since narrowly surviving the congressional uprising in June 2014. It’s hardly the only surveillance power that Congress seems to have forgotten.
Dragging Executive Order 12333 into the daylight
In July 2014, just a month after the intelligence agencies narrowly averted congressional reform targeting section 702, a former State Department employee revealed that U.S. intelligence agencies also rely on Executive Order 12333 to collect data on, from, and about Americans. EFF was drawing attention to E.O. 12333 even earlier, but it’s rarely discussed in Washington today as the subject of privacy-expanding surveillance reform.
One reason may be that, whereas surveillance programs citing Section 215 or Section 702 as their legal justification face periodic congressional reauthorization deadlines, executive orders do not. But even though we can’t rely on a reauthorization deadline to force congressional attention, we will invite Congress to more closely examine surveillance under executive orders and consider limiting principles.
In the courts, in Congress, in the press, and in your community
Our legislative goals will continue to test the temerity of legislators, while our litigation projects will continue to test the constitutionality of the government’s actions.
In the new year, we’ll launch campaigns to reform both Section 702 and E.O. 12333 to protect Fourth Amendment principles violated by mass surveillance. We’ll also continue our struggle in the courts, pursuing our flagship cases in Jewel and First Unitarian while supporting aligned litigation like Klayman, ACLU, and Wikimedia.
Regardless of how many campaigns we wage, however, we know that ending mass surveillance—whether through an act of Congress, or a judicial ruling—will take the outspoken support in 2016 of concerned Americans from all walks of life.
This article is part of our Year In Review series; read other articles about the fight for digital rights in 2015. 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.