This week EFF presented evidence in two of its NSA cases confirming the participation of Verizon Wireless, Sprint and AT&T in the NSA's mass telephone records collection under the Patriot Act. This is important because, despite broad public acknowledgement, the government is still claiming that it can dismiss our cases because it has never confirmed that anyone other than Verizon Business participated and that disclosing which providers assist the agency is a state secret. This argument was successful recently in convincing the D.C. Circuit to reverse and remand the case of Klayman v. Obama.
EFF filed requests with the courts in two lawsuits, Smith v. Obama and First Unitarian Church of Los Angeles v. NSA, asking that they accept as evidence and take into account government filings in the secret Foreign Intelligence Surveillance Court (FISC) that were recently made public. The filings confirm that AT&T, Verizon, Verizon Wireless, and Sprint participated in the NSA’s programs since they report on a "compliance incident" involving those companies.
One of the documents was released as part of a Freedom of Information Act lawsuit brought by the New York Times. It is a letter sent from the Department of Justice to the FISC describing how the agency failed to comply with an order the court issued in 2010. The subject line of the letter references that the order was for records from AT&T, Verizon, Verizon Wireless, and Sprint. The other document is one that had previously been made public on the website of the Office of the Director of National Intelligence that confirms that the spying program referred to in the letter is indeed the mass collection of telephone call detail records.
The government's shell game tactic has delayed both cases, diverting the courts’ attention away from EFF’s argument that the mass surveillance of customers’ communications violates the First Amendment right of association and the Fourth Amendment’s guarantee against unreasonable search and seizure. The government has used the same tired argument to delay EFF's Jewel v. NSA case against the tapping into the Internet backbone at AT&T's facilities, which was the subject of a recent New York Times/Pro Publica story.
EFF believes it’s long past time that the NSA come clean about the major providers like AT&T and Verizon involved in its various mass surveillance programs. The American people deserve better and the courts deserve not to be forced to contend with what, at this point, has become largely a charade.