Yesterday marked a frustrating juncture in EFF’s long-running lawsuit against mass surveillance, Jewel v. NSA, filed on behalf of AT&T customers whose communications and telephone records are being vacuumed by the National Security Agency. 

A federal court in San Francisco sided with the U.S. Department of Justice, ruling that the plaintiffs could not win a significant portion of the case—a Fourth Amendment challenge to the NSA’s tapping of the Internet backbone—without disclosure of classified information that would harm national security. In other words, Judge Jeffrey White found that “state secrets” can trump the judicial process and held that EFF’s clients could not prove they have standing.

To be perfectly clear: this decision does not end EFF’s case. The judge did not find that it is legal for the NSA to tap into the Internet backbone. Nor does the ruling apply to the portion of the case that covers the NSA’s capture of telephone records on a massive scale. EFF will continue to fight in court, both in Jewel, as well as our two other ongoing lawsuits challenging NSA surveillance.

We disagree with the court’s decision and it will not be the last word on the constitutionality of the government’s mass surveillance of the communications of ordinary Americans. 

The Jewel Backstory 

Jewel was filed in 2008 on behalf of ordinary Americans. The case is based on a wide range of NSA mass surveillance disclosed to the public in a series of newspaper articles starting in 2005 and bolstered by a former AT&T technician whistleblower who revealed a tap on AT&Ts fiber optic “Internet backbone.” The public learned that the NSA was copying Internet traffic as it traversed the backbone, also known as Upstream collection, as well as that it was collecting telephone call detail records in bulk. EFF’s clients alleged that these practices violate the First and Fourth Amendments to the Constitution and several other laws related to electronic surveillance.

Over the past seven years, both the district court and the Ninth Circuit have considered a variety of legal issues in the case. Last year, EFF appeared before the court during an emergency hearing over the NSA continual destruction of evidence.

This most recent ruling was in response to the motion for partial summary judgment EFF filed in July 2014 arguing that the NSA’s backbone surveillance violates the Fourth Amendment. The government responded with its own motion for partial summary judgment, asserting several defenses, including the “state secrets” privilege, which permits judges to disregard evidence that would endanger national security if publicly released. In support of its motion, the government filed secret declarations by NSA officials that were available to Judge White, but not to us or the public, and the judge relied on this evidence in his order.

Standing and State Secrets 

Judge White did not rule on the legality or constitutionality of the NSA mass Internet surveillance we challenged. Rather, the court explained that the publicly available information did not paint a complete picture of how the NSA collects Internet traffic, so the court could not rule on the program without looking at information that could constitute “state secrets.” 

“Because a fair and full adjudication of the Government Defendants’ defenses would require harmful disclosures of national security information that is protected by the state secrets privilege, the Court must exclude such evidence from the case,” Judge White writes in the decision. “Addressing any defenses involves a significant risk of potentially harmful effects any disclosures could have on national security.”

Agreeing with the government, the court found that the plaintiffs lacked “standing” to challenge the constitutionality of the program because they could not prove that the surveillance occurred as plaintiffs’ alleged. Despite the judge’s finding that he could not adjudicate the standing issue without  “risking exceptionally grave damage to national security,” he expressed frustration that he could not fully explain his analysis and reasoning because of the state secrets issue.

“The Court is frustrated by the prospect of deciding the current motions without full public disclosure of the Court’s analysis and reasoning,” he writes. “However, it is a necessary by-product of the types of concerns raised by this case. Although partially not accessible to the Plaintiffs or the public, the record contains the full materials reviewed by the Court. The Court is persuaded that its decision is correct both legally and factually and furthermore is required by the interests of national security.”

We disagree. Notably, Judge White did not mention the statutory procedure available for considering classified information. The Foreign Intelligence Surveillance Act (FISA) allows courts to examine secret evidence that is necessary to determine whether surveillance conducted by the government was done legally. In a decision in 2013, Judge White correctly ruled that this FISA procedure preempts the state secrets privilege, and we believe that the government’s use of the privilege here was improper.

The decision does not fully resolve the case. Again, the court only considered a part of our case—the NSA’s copying of Internet traffic from the Internet backbone—based on the publicly available evidence, primarily the report published by the President's Civil Liberties Oversight Board report and information provided by whistleblower Mark Klein. Our motion did not place at issue any of the other surveillance programs that are part of the lawsuit, such as the mass surveillance of telephone call records. 

Those other claims remain, and we intend to pursue them.

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