EFF Finally Gets To Ask Appeals Court To Look At 4th Amendment Question Over NSA's Backbone Sniffing

from the constitutional-fun dept

Thu, Aug 6th 2015 12:18pm — Mike Masnick

It's taken many years, but one of the EFF's longstanding cases against the NSA has finally reached an important milestone: exploring the 4th Amendment question raised by the NSA tapping the internet backbone. This is part of the Jewel v. NSA case that has been going on for years. Back in February (after a lot of procedural back and forth on other issues), the district court rejected the 4th Amendment argument, basically toeing the government's "but... but... national security!" line. Not surprisingly, the EFF disagreed with the court and appealed to the 9th Circuit appeals court.

The appeal is not just about the 4th Amendment question, but also about the question of standing. Like many surveillance cases, the courts have given the government a bit of a "get out of jail free" card by not letting anyone sue unless they can prove that they, specifically, were swept up by the surveillance. The lower court used this to reject the EFF's case as well, arguing that the evidence it presented was too "speculative." On appeal, the EFF argues this is ridiculous, as you can see in the EFF's opening brief:

First, the court erred in concluding plaintiffs lacked standing. Plaintiffs’ evidence, including extensive government admissions, shows that at least some of their Internet communications have been intercepted, copied, and searched, thus establishing their injury and giving them standing. Moreover, because the government defendants put in no evidence creating a genuine factual dispute regarding plaintiffs’ standing, plaintiffs are entitled to summary judgment on standing.

And then we get to the meat of the 4th Amendment argument:

Above all, the evidence demonstrates that plaintiffs are entitled to summary judgment on the merits of their Fourth Amendment claim. The suspicionless, warrantless interception and copying of plaintiffs’ Internet communications is an unconstitutional seizure, and the subsequent content searching of some of those communications is an unconstitutional search.

Later, the EFF filing leans heavily on last year's Supreme Court ruling in the Riley case which found mobile phone searches without a warrant to be a 4th Amendment violation:

The Supreme Court recently affirmed that the government’s search and seizure of digital information implicates core Fourth Amendment values and triggers the warrant requirement. Riley, 134 S.Ct. at 2495 (“The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”). The Court specifically noted the protected privacy interests in Internet browsing: “Internet search and browsing history . . . could reveal an individual’s private interests or concerns—perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD.” .... The Court went on to detail how a person’s digital information because of its breadth and depth gives a wide-ranging picture of a person’s most private thoughts and actions—even beyond what a general search of their home might reveal....

The Fourth Amendment privacy interests in digital information that the Supreme Court recognized in Riley are fully applicable to the Internet activities of plaintiffs that the government is seizing and searching— including emails, web browsing and searching, live chat, voice calls, social networking, photos, and videos—because of “all they contain and all they may reveal.”... Indeed, the Court noted that much of the digital information it protected in Riley is increasingly not stored on smartphones themselves but in the Internet “cloud,” with phones used to access the information over the Internet.... Because communications between smartphones and the Internet “cloud” often transit the Internet backbone, those communications are subject to the NSA’s interception.

There's a lot more in the filing that is well worth reading, and you can expect the Justice Department to attack basically all of it. Hopefully the 9th Circuit sees through it and recognizes the core principles at play here. It is difficult to believe that when the Founders drafted the 4th Amendment, that they didn't think it applied to sniffing up basically every communication "just in case."

Jewel 9th Cir Opening Brief (PDF)Jewel 9th Cir Opening Brief (Text)

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Filed Under: 4th amendment, jewel v. nsa, nsa, privacy, surveillance, upstream collection

23 Comments

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Anonymous Coward, 6 Aug 2015 @ 12:30pm

Irrelevant after CISA "legalizes" openly tapping Google, Microsoft, and every other corporation.
Lawsuits are far too slow. Windows 10, the most brazen data-slurper yet, even surpassing Google's Chrome, is out.
[ link to this | view in thread ]
Anonymous Coward, 6 Aug 2015 @ 12:31pm

Irrelevant after CISA "legalizes" openly tapping Google, Microsoft, and every other corporation.
Lawsuits are far too slow. Windows 10, the most brazen data-slurper yet, even surpassing Google's Chrome, is out.
[ link to this | view in thread ]
Anonymous Coward, 6 Aug 2015 @ 12:33pm

Irrelevant after CISA "legalizes" openly tapping Google, Microsoft, and every other corporation.
Lawsuits are far too slow. Windows 10, the most brazen data-slurper yet, even surpassing Google's Chrome, is out.
[ link to this | view in thread ]
Anonymous Coward, 6 Aug 2015 @ 12:55pm

Glad to see the EFF is finally using the "unconstitutional seizure" argument.

I don't think they have so far, and the US government has kept claiming that it's okay to "collect everything" because the search is only done with a warrant (and a "general" one at that).

The 4th amendment talks about seizures too not just searches.
[ link to this | view in thread ]
Anonymous Coward, 6 Aug 2015 @ 1:12pm

The biggest problem I have with this, is by the time the case finally sees actual traction; I can forsee the government saying "Oh that's cool, we have already shut all of those programs down". and we the people are left to find out about the new ones...
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Anonymous Coward, 6 Aug 2015 @ 1:21pm

Re:
..."unconstitutional seizure"...

While the 9th may uphold this appeal don't think that they (or any other court) won't become anal about definitions. Seizure means (or implies) that something was taken away such that the original possessor no longer has it. In this case information was copied, not taken away.
[ link to this | view in thread ]
avideogameplayer, 6 Aug 2015 @ 1:25pm

Re: Re:
I guess the irony is gonna be lost on any pirates around here...:P
[ link to this | view in thread ]
mcinsand, 6 Aug 2015 @ 1:52pm

Something wasn't taken away?!?!? Get real!
This isn't about the information; privacy was taken away...taken away and trashed.
[ link to this | view in thread ]
Anonymous Coward, 6 Aug 2015 @ 2:36pm

Re: Something wasn't taken away?!?!? Get real!
Ironic, much like ownership rights.
[ link to this | view in thread ]
Anonymous Coward, 6 Aug 2015 @ 2:37pm

Re: Re: Something wasn't taken away?!?!? Get real!
...and 1st sale doctrine.
[ link to this | view in thread ]
avideogameplayer, 6 Aug 2015 @ 2:49pm

Re: Something wasn't taken away?!?!? Get real!
What privacy? All your info is stored on THIRD party servers...

Besides, it's only COPIED...the original is still on the hard drives...no harm, no foul...

Isn't that the line used by pirates when they download a file?

Or isn't that a little inconvenient truth?
[ link to this | view in thread ]
avideogameplayer, 6 Aug 2015 @ 2:53pm

You people can't have it both ways in terms of file copying...

A and B can do it but C can't...
[ link to this | view in thread ]
Anonymous Coward, 6 Aug 2015 @ 3:01pm

Re: Re: Something wasn't taken away?!?!? Get real!
Yup, kinda like:

What privacy? All your info is stored in a THIRD party rental property.

As far as your conflating piracy with snooping. They are as dissimilar as they are similar.
[ link to this | view in thread ]
Anonymous Coward, 6 Aug 2015 @ 3:05pm

Re: Re: Re: Something wasn't taken away?!?!? Get real!
Furthermore, it does not matter where the end destination was, it was seized in transit.
[ link to this | view in thread ]
That One Other Not So Random Guy, 6 Aug 2015 @ 3:13pm

Re: Irrelevant after CISA "legalizes" openly tapping Google, Microsoft, and every other corporation.
Only took 2 times this time... boB.
[ link to this | view in thread ]
That One Other Not So Random Guy, 6 Aug 2015 @ 3:16pm

Re: Re: Something wasn't taken away?!?!? Get real!
Hey... avidboB... can I copy your social security number?
[ link to this | view in thread ]
That One Other Not So Random Guy, 6 Aug 2015 @ 3:17pm

Re:
^^^ Idiot ^^^
[ link to this | view in thread ]
Anonymous Coward, 6 Aug 2015 @ 5:11pm

Re: Re:
ah; information was copied, but privacy was taken away. I think that's the bit that needs to be hashed out by the court. It's not the information that's been seized, but the privacy. And the thing about privacy is that once it's taken away, you can never really get it back.
[ link to this | view in thread ]
Anonymous Coward, 6 Aug 2015 @ 5:37pm

Their Damn Job!
I guess I am a moron for thinking the NSA should actually be doing half of its job function in the first place. Protecting our private data from everyone including themselves. By passing along the collection portion to other 5 eyes countries, they are just blatantly ignoring half of their reason for existing in the first place.
[ link to this | view in thread ]
avideogameplayer, 6 Aug 2015 @ 5:45pm

Re: Re: Re: Something wasn't taken away?!?!? Get real!
Here...504-78-1090

https://fakena.me/fake-social-security-number/
[ link to this | view in thread ]
That One Guy (profile), 6 Aug 2015 @ 5:54pm

Re:
It's funny how you think spying on someone's personal information is even remotely similar to copyright infringement.

The latter involves the possible 'loss', of 'potential' profits, while the former involves the very real loss of privacy, if not worse. The two aren't even remotely similar, but hey, keep lying and claiming that they are if you really feel the need.
[ link to this | view in thread ]
jimb (profile), 6 Aug 2015 @ 8:41pm

But... but.. but... Terrorists!

There, government gets everything it wants, citizens get bubpkis.
[ link to this | view in thread ]
Anonymous Coward, 18 Aug 2015 @ 12:45pm

Re: Re:
Did they have permission from the copyright holder? $150 000/infringement
[ link to this | view in thread ]