We all deserve the right to have a private conversation online. That’s why EFF has taken on government surveillance for the past 30-plus years. One of our longest-running efforts has been to stop the National Security Agency’s (NSA) surveillance that sweeps up tens—if not hundreds—of millions of innocent people in its dragnet. Our work will continue.
But today the U.S. Supreme Court slammed the courthouse door on our flagship NSA surveillance lawsuit, Jewel v. NSA, effectively validating the government’s claims that something known and debated across the world—the NSA’s mass surveillance—is somehow too secret to be challenged in open court by ordinary members of the public whose communications were caught in the net.
The Supreme Court this week allowed our case to be dismissed because it’s a “secret” that the mass spying programs that everyone has known about since at least the Snowden documents came to light in 2013 (and disclosed in the national news long before that) involved the nation’s two largest telecommunications carriers. Yes, you read that right: something we all know is a still officially a “secret” and so cannot be the subject to litigation. Specifically, the Court refused to take on and reconsider a Ninth Circuit decision (and an underlying district court ruling) that held that the state secrets privilege blocked our clients’ efforts to prove that their data was intercepted such that they had standing to sue.
The central fact that these courts found to be “secret” is that AT&T and Verizon participated in the mass spying, even though we had submitted ample public evidence to support that finding. The Ninth Circuit decision was so cursory that the court didn’t even review the lower court’s sealed opinion addressing the government’s actual evidence of the spying, despite the fact that the District Court specifically required the government to present that evidence in secret.
In the name of national security, the Supreme Court has now allowed the government to unilaterally cut off lawsuits like ours at the knees, thereby preventing people from challenging egregiously unlawful surveillance.
As we said in our briefs, the courts have now : “created a broad national-security exception to the Constitution that allows all Americans to be spied upon by their government while denying them any viable means of challenging that spying.” This exception prevents courts from even considering whether the surveillance violates the Constitution or other privacy laws, effectively denying Americans their day in court and the benefits of the laws that Congress passed to protect them. The American people and our Constitution deserve more from federal courts.
EFF’s NSA Spying Cases
First, some history: EFF filed Jewel v. NSA in 2008, and our original case, Hepting v. AT&T, in 2006. Both cases arose from three different kinds of surveillance that the U.S. government initiated in the aftermath of 9/11: first, the mass telephone records collection program, second, the mass Internet metadata collection program and third, what we later learned was called the Upstream program, where the NSA, with the help of the major telecommunications companies, tapped into the Internet backbone at key locations to monitor communications as they passed by. And of course in 2013, after years of disingenuous denials by those in government, Edward Snowden’s documents helped make it crystal clear to the entire world that these programs existed, pushed the government to admit them, and helped spur some real reform (more on that below).
And so much happened along the way. In 2006, EFF won in the District Court against AT&T’s claim that the case must be dismissed, along with collected cases against Verizon and other telecommunications carriers and we defended that decision in the Ninth Circuit. But in 2008, Congress shamefully enacted “retroactive immunity,” protecting the telecommunications carriers from the consequences of their rampant violations of federal and state privacy laws. Undeterred (and promised by many in Congress that their only concern was protecting the carriers) we launched a suit directly against the NSA in Jewel v. NSA, for the same three illegal mass spying programs. An earlier-filed case against the government, called Shubert, also survived. Later we launched another case, First Unitarian Church, which focused in on the right of association at issue in the telephone records collection portion of the NSA Spying, but Jewel remained the flagship case. Initially, the federal courts recognized that the law protected our case against several government attacks and the District Court judge even ordered the government to present evidence of our standing in secret. But ultimately, and confusingly, the lower courts changed course.
Supreme Court Embraces National Security Secrecy as Blocking the Rights of Victims
The Supreme Court’s rejection of our case is shameful, but not surprising. This term the Supreme Court had two other chances to bring some basic constitutional accountability to the national security state and it failed to do so. First, in Abu Zubaydah (also called Husayn), the Supreme Court confirmed that in national security speak, “secret” doesn’t mean secret. Instead, for purposes of the state secrets privilege, “secret” means whatever facts the government wants to keep out of court by refusing to formally confirm them, regardless of how widely known they are.
In Abu Zubaydah, the Supreme Court allowed the government to claim the state secrets privilege over the fact that the plaintiff’s torture (which was admitted) occurred in a U.S. government black site in Poland, a fact that had been confirmed by the European courts as well as the former Polish Prime Minister. The Supreme Court allowed this claim of state secrets to block the plaintiff’s attempt to get information from former government contractors via the international discovery process to support his claim against Polish officials in the European Courts
The second case is called Fazaga, where the Supreme Court rejected the argument that Congress preempted the state secrets privilege when it created a specific process in the Foreign Intelligence Surveillance Act (FISA), found in section 1806(f), for handling the government’s claims of national security secrecy in cases arising from alleged illegal surveillance. Fazaga is a case that arose out of an undercover FBI investigation by a confidential informant into a Muslim community in Southern California that was so alarming that the targets themselves called the FBI to report the informant as a potential terrorist.
In Fazaga the Supreme Court held that despite Congress’ express creation of a method for a federal court to secretly review evidence of claimed illegal surveillance, the Executive Branch can just still unilaterally assert the state secrets privilege and prevent the FISA statute from actually being applied. The Jewel plaintiffs relied on section 1806(f), plus another statute, 18 U.S.C. § 2712, that separately authorizes redress for illegal surveillance. But the Supreme Court refused to recognize that Congress intended to override the Executive Branch’s ability to claim state secrets.
Although we will still be on the lookout for ways to get the Courts to stand up for your rights not to be spied upon by your government, with these decisions the Supreme Court has fully endorsed the idea that the Executive Branch has unilateral authority to use secrecy arguments, no matter how flimsy, to close the courthouse doors for those seeking to vindicate their rights to have a private conversation.
No Legal Victory, but Lots of Shifts in NSA Spying
While we did not prevail in the litigation, the work we did, and the millions of Americans who raised concerns about the NSA spying over the years, did result in some dramatic changes in NSA spying. Congress stopped the mass telephone records program in 2015 as part of the USA Freedom Act. Of course, the revamped program still (and predictably) ended up collecting and keeping a huge number of telephone records, a fact the government reported itself before the law authorizing the program expired. The mass Internet metadata program was stopped in 2011, allegedly due to Congressional concerns that it wasn’t actually providing any useable intelligence.
The Upstream program continues, however, although it has been limited to just metadata (it had included content review) because of ongoing issues raised by the FISA Court. Upstream is nonetheless still used to broadly surveil millions of Americans, with the government recently disclosing that between December 2020 and November 2021, the FBI queried the data of potentially more than 3 million U.S. persons without a warrant. The statute that purports to authorize Upstream, section 702, is set to expire in December, 2023.
Many Heros to Thank
We are forever grateful to our clients, Carolyn Jewel, Tash Hepting, Erik Knutzen, Joice Walton, and Gregory Hicks, who stood up for everyone in the U.S., and who remained steadfast despite the many twists and turns of this case. They understood how illegal the NSA’s spying was and were resolute in demanding their day in court. We are grateful for their courage.
We are also eternally grateful to our whistleblowers, most especially Mark Klein, who first showed up at our door in 2006, and who at great personal risk brought us key evidence of the NSA’s spying. He demonstrated that there was an NSA facility in Room 641a of the AT&T building on Folsom Street in San Francisco, a revelation that served as the centerpiece of the case. Mark also came with us to Washington in 2008 to try to stop AT&T from getting retroactive immunity from Congress.
Big thanks also to Bill Binney, J. Kirk Wiebe, Thomas Drake, and of course, the indomitable Ed Snowden, for sacrificing so much to try to bring the truth to America and the world. They are our heroes and should be to anyone who cares about privacy.
We’d also like to especially thank our co-counsel, who were indispensable and unflagging despite years of ups and downs in the courts. Our team leader, Richard R. Wiebe shepherded this case, along with help from Thomas E. Moore III, Jim Tyre (RIP), Aram Antaramian, Michael Kwun. Additionally, Rachel Meny, Benjamin Berkowitz, and, and many other folks from the law firm of Keker, Van Nest & Peters LLP helped in this long journey. This case would not have been possible without all of their immense contributions.
The Fight for your Privacy Continues
Finally, though our challenge in Jewel has ended, the fight to end the NSA’s mass surveillance continues. As noted above, section 215 has expired, although the government is allowed to continue using it in investigations that started before expiration. Nonetheless, it should not be renewed and Congress should push the government to end its use under preexisting authorizations.
Equally importantly, in late 2023 we’ll have a chance to put an end to Section 702, one of the key provisions that Congress passed in 2008 to protect the NSA’s activities and which currently authorizes what is left of the Upstream program. Congress should not renew Section 702 next year. Year after year, the Inspector General’s reports and FISA Court review of the program find huge problems in its implementation. The NSA simply cannot do this kind of mass surveillance consistent with the Constitution. It’s time for all of these gigantic, ungovernable, unaccountable and insanely expensive mass spying endeavors to end. It’s time for Americans to be once again allowed to have an online conversation without the NSA watching who they talk to, when and for how long. While the courts have abdicated their responsibility to protect you against NSA Spying, there is a good chance to push Congress to scale back the NSA’s authority. And we’ll need all of your help to make sure our voices are heard and heeded.
Categories: Electronic Frontier Foundation