Court Rejects EFF's Arguments Over NSA Internet Surveillance

from the keep-appealing dept

Tue, Feb 10th 2015 3:42pm — Mike Masnick

One of the key ongoing lawsuits challenging the NSA's warrantless surveillance of Americans and their internet usage is the Jewel v. NSA case that actually predates the Snowden revelations. The specific case involves challenges to the so-called "upstream collection" under Section 702 of the FISA Amendments Act. Specifically, this is about the NSA tapping telco fiber directly (as Mark Klein revealed concerning AT&T) and sifting through all the traffic for "relevant" (defined loosely) information. The EFF is handling the case against the government in Jewel, and argued that such collection violates the 4th Amendment. Unfortunately, the court has now rejected that argument, refusing to grant summary judgment to the EFF, instead granting partial summary judgment to the US Government.

Unfortunately, as in past attempts to challenge US surveillance, much of the issue comes down to one of standing. The individuals suing don't have evidence that their personal information was collected, so they don't necessarily have standing to sue (so says the US government). Of course, even when there is evidence, the government often has a way to weasel out of the legal challenge anyway. And, unfortunately, we're right back in that situation with the Jewel case. Since this case was over the AT&T internet taps, the EFF noted that AT&T customers should have standing, but the court isn't convinced that's enough:

However, the question whether Plaintiffs can establish standing to pursue their Fourth Amendment claim against the Government Defendants for constitutional violations goes beyond whether they, as individuals and AT&T customers with Internet communications, can proffer evidence of generalized surveillance of Internet communications. Although the public and admissible evidence presented establishes that Plaintiffs are indeed AT&T customers with Internet communications and would fall into the class of individuals surveilled, the evidence at summary judgment is insufficient to establish that the Upstream collection process operates in the manner in which Plaintiffs allege it does.

In their attempt to establish the factual foundation for their standing to sue on their Fourth Amendment Claim, Plaintiffs rely in large part on the declarations of Mark Klein and their proffered expert, J. Scott Marcus, as well as other former AT&T and NSA employees to present the relevant operational details of the surveillance program. Plaintiffs assert that the declarations support the contention that all AT&T customers’ Internet communications are currently the subject of a dragnet seizure and search program, controlled by or at the direction of the Government. However, having reviewed the record in its entirety, the Court finds the Plaintiffs’ evidence does not support this claim.

Plaintiffs principally rely on the declaration of Klein, a former AT&T technician who executed a declaration in 2006 about his knowledge and perceptions about the creation of a secure room at the AT&T facility at Folsom Street in San Francisco. However, the Court finds that Klein cannot establish the content, function, or purpose of the secure room at the AT&T site based on his own independent knowledge.... The limited knowledge that Klein does possess firsthand does not support Plaintiffs’ contention about the actual operation of the Upstream data collection process. Klein can only speculate about what data were actually processed and by whom in the secure room and how and for what purpose, as he was never involved in its operation. In addition, Plaintiffs’ expert, Marcus, relies exclusively on the observations and assumptions by Klein to formulate his expert opinion. Accordingly, his testimony about the purpose and function of the secure equipment at AT&T and assumed operational details of the program is not probative as it not based on sufficient facts or data.... The Court finds that Plaintiffs have failed to proffer sufficient admissible evidence to support standing on their claim for a Fourth Amendment violation of interference with their Internet communications. In addition, without disclosing any of the classified content of the Government Defendants’ submissions, the Court can confirm that the Plaintiffs’ version of the significant operational details of the Upstream collection process is substantially inaccurate.

And, unfortunately, the court further accepts the DOJ's claims that going any further in this case will lead to the terrorists winning or something:

In addition, having reviewed the classified portion of the record, the Court concludes that even if the public evidence proffered by Plaintiffs were sufficiently probative on the question of standing, adjudication of the standing issue could not proceed without risking exceptionally grave damage to national security. The details of the Upstream collection process that are subject the Government’s assertion of the state secrets privilege are necessary to address the defenses against Plaintiffs’ theory of standing as well as to engage in a full and fair adjudication of Government Defendants’ substantive defenses against the Claim. The Court has reviewed the classified brief submitted by the Government and finds that its legal defenses are persuasive, and must remain classified.

Disclosure of this classified information would risk informing adversaries of the specific nature and operational details of the Upstream collection process and the scope of the NSA’s participation in the program. Notwithstanding the unauthorized public disclosures made in the recent past and the Government’s subsequent releases of previously classified information about certain NSA intelligence gathering activities since 2013, the Court notes that substantial details about the challenged program remain classified. The question of whether Plaintiffs have standing and the substantive issue of whether there are Fourth Amendment violations cannot be litigated without impinging on that heightened security classification. 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.

And, with that, the judge, Jeffrey White, rejects the 4th Amendment claim. I'm guessing that the EFF will appeal.

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Filed Under: doj, faa, fisa amendments act, jewel v. nsa, nsa, section 702, standing, state secrets, surveillance, upstream collection
Companies: eff

25 Comments

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Anonymous Coward, 10 Feb 2015 @ 4:20pm

>The question of whether Plaintiffs have standing and the substantive issue of whether there are Fourth Amendment violations cannot be litigated without impinging on that heightened security classification.

National security law trumps constitutional law? I through the constitution was supposed to be the foundation of our constitutional republic. I guess we only have a constitutional republic in empty words and symbols. If this ruling stands, it proves there's no lawful authority behind the US constitution. The US constitution is just for show. A 'feel good' document, if you will.
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Anonymous Coward, 10 Feb 2015 @ 4:36pm

When we rebuild this nation after the civil war, we really should do something to make it easier to hold our leadership responsible.
It's far too easy for them to game the rules and get out of everything.
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Anonymous Coward, 10 Feb 2015 @ 4:42pm

"In addition, having reviewed the classified portion of the record, the Court concludes that even if the public evidence proffered by Plaintiffs were sufficiently probative on the question of standing, adjudication of the standing issue could not proceed withoutrisking exceptionally grave damage to national security. The details of the Upstream collection process that are subject the Government’s assertion of the state secrets privilege are necessary to address the defenses against Plaintiffs’ theory of standing as well as to engage in a full and fair adjudication"

Blah blah blah bla, could not proceed withoutrisking exceptionally grave damage to national security. Blah blah blah blah

Funny how these particular comments are made simply, while everything else looks like an active decision to not put things simply......its like theres a purposefull act to confuse and bore a majority of people in order to lessen the amount of people paying attention............wouldnt be surprised to hear this being a dispicable and often used tactic

As far as im concerned if a person doesnt understand a contract they have no choice in signing, then they are not obliged to follow said contract........legalese speak should be made understandable not puposefully complicated fir whatever nerfarious reasons.......infact, fuck it, rip up all the contracts in the world, too many are their just for folks to ask other folks to give up their rights, so therefore illegal in the first place
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Anonymous Coward, 10 Feb 2015 @ 5:05pm

Unreasonable Search and Seizure
Seizing is taking place on the backbones. Searching is taking place in the computers that sort and store everything with its metadata. Unreasonable exists by the very nature of all of this happening to people who are presumed to be innocent until proven guilty in a court of law. No court ever convicted everyone as far as I am aware so the entire system is based on absolutely nothing legal. Don't challenge it in court, they own the court with all the blackmail collected in previous programs.
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PANIC!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!, 10 Feb 2015 @ 5:23pm

THINK OF THE CHILDREN!!!!!!!!!!!!!!!
As I have said before someone needs to actually think of the children that will have no freedom and be slaves, if you let these people get what they want they are slavers they are the violence that they are inflicted your children your children will be the sex slaves of the NSA, CIA and OBAMA, or just the sex slaves of people with guns and authority, cops, FBI, DMV, people appointed for random reasons over your block,... that is where this is going.
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ryan, 10 Feb 2015 @ 5:40pm

Re:
The Supreme Court has been going out of their way to make that exact argument. The way things have been going the idea of "rule of law" in the United States is completely dead.

Only the poor people are required to follow laws.

The government and people who can afford private attorneys can ignore it freely.
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Anonymous Coward, 10 Feb 2015 @ 6:24pm

much of the issue comes down to one of standing.

Ahhh standing. Imagine someone who's violating a past court order and to bring it to the attention of the court they attempt to re-open the past case to have a hearing about that old order.

https://ia802601.us.archive.org/15/items/gov.uscourts.wieb.362573/gov.uscourts.wieb.362573.doc ket.html

Being in-your-face about blowing off an agreement to sell and the order of a judge....no standing no concern of ours.
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Anonymous Coward, 10 Feb 2015 @ 6:38pm

Re: Re:
The government and people who can afford private attorneys can ignore it freely.

Same as it has always been it seems.
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That One Guy (profile), 10 Feb 2015 @ 6:53pm

So many wasted words...
The DOJ might as well have just filed a single document in opposition, with "National Security: Because Terrorists!" printed on it, and I imagine it would have had the same result, given how eager the judge is to bend over for the government.
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beltorak (profile), 10 Feb 2015 @ 7:31pm

Re:
It is impossible to create a system that cannot be gamed. i believe that follows from Turing and Gödel.
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orbitalinsertion (profile), 10 Feb 2015 @ 7:57pm

"You have no proof of that, and furthermore, if we were to continue discussing it, we may damage national security by revealing facts about things which totally did not happen."
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Christenson, 10 Feb 2015 @ 8:27pm

Just as with Ulbricht/DPR and siezed servers used to convict
The evidence is being used against you...but you have to claim ownership before you can challenge the seizure...

You have to get your details right on a secret operation before you can challenge it...never mind that it is prima facia evidence that an illegal and warrantless search is going on...never mind that the government is acting on the data, and that can be proven too...

Dear Judge:
Once the packets go into that splitter, and the other end of the fiber is controlled by the NSA, a SEARCH is taking place, and the details are basically immaterial, since there are no warrants. See fourth amendment. Or maybe you can show us the name of the judge signing the warrants with Jewel's name on them? Surely the fact that Jewel's data was searched and acted on is no secret, and the fact of the secure room is no secret either at this point.

Any other stance erodes confidence in both you and the rule of law, and gives the appearance of impropriety on your part.
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David, 11 Feb 2015 @ 12:40am

Re:
Well, in a state of emergency, martial law trumps the constitution. And the U.S. has been in continuous state of emergency for something like 50 years by now.
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Seegras (profile), 11 Feb 2015 @ 2:07am

Isn't there something like a motion to discovery?
I thought you could try to get a court to order discovery, if it's "reasonably calculated to lead to admissible evidence".

So any customer of AT&T should be able to demand this.
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That One Guy (profile), 11 Feb 2015 @ 2:31am

Re: Re:
Purely a coincidence I'm sure, I mean, why in the world would the US government want unchecked power for decades at a time?
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michaelb958 (profile), 11 Feb 2015 @ 3:32am

Surely someone's got to have standing!
Oh for $DEITY's sake. Not allowing anyone to challenge surveillance programs defeats the point of having the option to challenge them. If no-one has standing until legal contortions requiring standing have been performed, then what's the damned point?!
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Quiet Lurcker, 11 Feb 2015 @ 5:04am

Re:
"You have no proof of that, and furthermore, if we were to continue discussing it, we may damage national security by revealing facts about things which totally did not happen."

The court here is throwing out well-nigh every rule, guideline, principle, etc., which would otherwise inform a decision like this.

There is public, credible evidence that something illegal, if not unconstitutional is taking place. Constitutional questions take precedence over national security, no matter what the court may think. Else, the constitution would be useless.

Irrespective of standing or its lack, irrespective of their probity and weight, plaintiffs have established enough facts to support the allegation, and so by the rules of civil procedure the court must allow the case to go forward. Not may, MUST.

The court, in accepting testimony from the government without allowing the plaintiff to address the issues raised by the government, is denying plaintiffs the right to compel the production of evidence and testimony.

In short, the court here is abdicating its lawful and equitable responsibilities.

I wonder if the plaintiff would have had greater success with their case if they had included a demand that the government specify to plaintiff the alleged crime that serves as the basis for government's warrant.
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That One Guy (profile), 11 Feb 2015 @ 6:00am

That's a feature, not a bug.
By making it impossible in practice to challenge the spying programs through the courts, while leaving the fact that theoretically it can be done, they can maintain the fiction that because the courts haven't ruled that they're doing anything illegal, that makes it all okay.
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Anonymous Coward, 11 Feb 2015 @ 6:53am

Judge draws wrong conclusion from key statement
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.
OK, so let's exclude that evidence from the court. If defendants aren't willing to submit some piece of exculpatory evidence, then they will have to defend their case without using that evidence. If they cannot defend themselves without that evidence, then they can choose either to submit the evidence or to lose. That's how it works when the government is the plaintiff.

Besides, have they never heard of submitting material under seal? Are they really claiming, and the judge accepting, that it is absolutely impossible to find properly qualified attorneys who can be sworn to secrecy prior to reviewing the evidence? The government has no problem with the idea that they can gag whatever schmuck happens to receive/process an NSL, but they can't gag a well-trained attorney?
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AricTheRed (profile), 11 Feb 2015 @ 7:02am

Re: Judge draws wrong conclusion from key statement
"...they can't gag a well-trained attorney?"

I've seen 50 Shades of Grey, I know you can gag a well-trained attorney.

That is step one in the training process.
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Vic, 11 Feb 2015 @ 10:20am

So, it's basically the good old song "If your privacy has been violated but you do not know about it, then your privacy has not been violated and it's all fine and dandy".
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Uriel-238 (profile), 11 Feb 2015 @ 12:00pm

Maybe Jefferson was right
TREE OF LIBERTY
care and feeding:

Best Watered With: Blood of patriots and tyrants

Note: Water frequently!
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Uriel-238 (profile), 11 Feb 2015 @ 12:10pm

Fortunately, EFF's plan is only about a third in challenging policy
Reading the EFF gameplan it appears their primary movement is in developing end-to-end encryption technology so that it's easy enough and understandable enough that common end-users will adopt it. If enough do, then rights-violating searches will become too expensive for NSA-style dragnet approaches.

And this is a good thing since a) legal action against the US government isn't going to stop other governments or corporations from spying on people, and b) since the DoJ benefits largely from this kind of spying, they have an invested interest in keeping it legal in the US, even if it's transgressive and ethically wrong.
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John Fenderson (profile), 11 Feb 2015 @ 1:04pm

Re: Fortunately, EFF's plan is only about a third in challenging policy
Also, the court only rejected a summary judgement. This does not mean that case is lost, only that it has to actually go through the entire court process.
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GEMont (profile), 13 Feb 2015 @ 2:31pm

Re:
In case you missed it, 9/11 gave the Federal Spy Agencies the "right" to "reinterpret" the Constitution of the US.

That means that the Constitution now states something completely different than it did before 9/11.

That means that the Spy Agencies and the Federal Government now have extraordinary powers granted to them by the New Constitution of the US - which, by the way, you're not allowed to see.

The New Secret Constitution of the United States gives the Federal Government the "right" to:

- Enact new laws in secret.

- Enforce these new laws without following due process that would expose the content of such new laws.

- Re-interpret old laws on the fly as needed.

- Prosecute under the re-interpretation of old laws without divulging the content of the interpreted version of the old law.

- Kidnap, Assassinate, Torture and Incarcerate US civilians without due process, without laying charges, in secret.

- Assassinate/murder anyone, anywhere, anytime.

- Spy on and accumulate evidence against all people on earth, for future blackmail, espionage, coercion, or assassination needs, forever.

.... and absolutely any other extraordinary power they considered might be necessary to getting whatever they decide needs doing, done.

If your constitution is the basis of all law in the nation, then all law in the nation is now brand spanking new and specifically rewritten to give all power possible to the leaders of the nation, without consequence, and completely unknowable to those that are governed by it.

Might as well rename your nation.

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