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A federal court upheld the National Security Agency's state secret powers on Tuesday. (Photo: EFF/flickr/cc)

NSA Spy Program So Secret Judge Can't Explain Why It Can't Be Challenged

Consumer advocacy group which brought the case vows to 'continue to fight to end NSA mass surveillance'

Nadia Prupis

A federal judge ruled in favor of the National Security Agency in a key surveillance case on Tuesday, dismissing a challenge which claimed the government's spying operations were groundless and unconstitutional.

Filed in 2008 by the Electronic Frontier Foundation, the lawsuit, Jewel v. NSA, aimed to end the agency's unwarranted surveillance of U.S. citizens, which the consumer advocacy group said violated the 4th Amendment.

The lawsuit also implicated AT&T in the operations, alleging that the phone company "routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA." That charge was based off of a 2006 document leak by former AT&T technician and whistleblower Mark Klein, who disclosed a collection program between the company and the NSA that sent AT&T user metadata to the intelligence agency.

US District Judge Jeffrey White on Tuesday denied a partial summary judgment motion to the EFF and granted a cross-motion to the government, dismissing the case without a trial. In his order, White said the plaintiff, Carolyn Jewel, an AT&T customer, was unable to prove she was being targeted for surveillance—and that if she could, "any possible defenses would require impermissible disclosure of state secret information."

Offering his interpretation of the decision, EFF senior staff attorney David Greene explained in a blog post:

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 EFF later Tweeted:

Calling the ruling "frustrating," Greene said the EFF "disagree[s] 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."

Jewel v. NSA is the EFF's longest-running case. Despite the decision, the EFF said it would not back down from its pursuit of justice and was careful to note that the ruling did not mean that the NSA's operations were legal.

"Judge White’s ruling does not end our case. The judge's ruling only concerned Upstream Internet surveillance, not the telephone records collection nor other mass surveillance processes that are also at issue in Jewel," said Kurt Opsahl, deputy legal council at EFF. "We will continue to fight to end NSA mass surveillance."

The issue is similar to the 2013 Supreme Court decision in Clapper v. Amnesty International, which found that plaintiffs who had reason to believe they were being spied on could not provide substantial proof of surveillance, and thus could not bring their case.

Jewel v. NSA stems from the EFF's 2006 case, Hepting v. AT&T, which was dismissed in 2009 after Congress, including then-Senator Barack Obama, voted to give telecommunications companies immunity from such lawsuits.

"It would be a travesty of justice if our clients are denied their day in court over the 'secrecy' of a program that has been front-page news for nearly a decade," Opsahl added.


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