August 24, 2011 | By Cindy Cohn

EFF’s Warrantless Wiretapping Cases Back in Court on August 31

More than five years ago, EFF filed the first lawsuit aimed at stopping the government's illegal mass surveillance of millions of ordinary Americans' private communications. Whistleblower evidence combined with news reports and Congressional admissions revealed that the National Security Agency (NSA) was tapped into AT&T’s domestic network and databases, sweeping up Americans’ emails, phone calls and communications records in bulk and without court approval.

Hepting v. AT&T, our case challenging the telecom giant’s illegal collaboration with the NSA, faced a barrage of attacks from the government -- including outrageous claims that national security prevented the courts from considering whether AT&T and the government were breaking the law and violating the Constitution. When that gambit seemed to be failing, the White House and the telecoms led a lobbying campaign to convince Congress to pass a law threatening to terminate our suit. When that law passed we filed a follow-up suit directly against the government, Jewel v. NSA, to open a second front in our fight to stop the spying.

On August 31, 2011, at 2 pm in Seattle, the Ninth Circuit Court of Appeals will hear a warrantless wiretapping double-feature, to decide whether the Hepting and Jewel cases can proceed. At stake will be whether the courts can consider the legality and constitutionality of the National Security Agency’s mass interception of Americans’ Internet traffic, phone calls, and communications records.

Jewel v. NSA, EFF’s case directly against the government and government officials, will be argued by EFF Senior Staff Attorney Kevin Bankston. The District Court dismissed Jewel on the grounds that, because millions of Americans had been illegally spied upon, no single American had standing to sue. The alarming upshot of the court's decision is that as long as the government spies on all Americans, the courts have no power to review or halt such mass surveillance even when it is flatly illegal and unconstitutional. EFF will argue that the number of people harmed should have no bearing on whether each individual -- whose own communications and communications records are being intercepted and diverted to the government -- should be able to sue.

On appeal, the government does not seriously defend the District Court’s reasoning but instead renews its old argument that the case should be dismissed based on the state secrets privilege, an argument that the District Court rejected back in 2007 in the Hepting case. That decision held, and EFF argues on appeal, that Congress has overridden the state secrets privilege when it comes to government wiretapping by providing specific security procedures in the Foreign Intelligence Surveillance Act (FISA) that govern how courts are supposed to handle secret evidence relating to electronic surveillance. The Jewel case will be heard in conjunction with Shubert v. Bush, another case against the government over the NSA’s mass surveillance that was dismissed by the District Court at the same time as the Jewel suit. Shubert counsel Ilann M. Maazel will argue that case.

EFF’s case against AT&T, along with approximately 34 other cases against various telecommunications carriers, will be argued by EFF Legal Director Cindy Cohn. The argument arises from the FISA Amendments Act (FAA), the law passed by Congress after a fierce battle in 2008 (and a last-minute flip-flop from then-Senator Obama). With the FAA, lawmakers gave the Executive Branch the unbounded authority to decide to selectively repeal the thirty-year old laws that prohibit companies from violating their customers’ privacy, effectively allowing the Executive to grant favored companies a “get out of lawsuit free” card.

EFF will argue that the law violates the Constitutional separation of powers and due process by, first, giving the President the right to effectively grant civil pardons to carriers and, second, stacking the deck in the courts to prevent meaningful review. EFF’s co-counsel, Harvey Grossman of the Illinois ACLU, will argue that the dismissal of the constitutional claims in the case is separately not allowed under the Constitution.

The outcome of both Jewel v. NSA and Hepting v. AT&T will be crucial not only to those who wish to stop the spying and regain the privacy of our communications, but to upholding the Constitutional limitations on the Executive Branch’s power. Under the Constitution, important decisions about surveillance of Americans are not the Executive’s alone, nor are decisions about whether the Constitution and Congress’ laws must be followed. We need to be vigilant about protecting ourselves, and ultimately the Constitution, against actions that ignore or overstep limits on Executive power, and that's why we're looking forward to these critical arguments in Seattle on August 31.


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