Jewel v. NSA: On to the Ninth Circuit: 2019 Year in Review

Jewel v. NSA, EFF’s landmark case challenging NSA’s mass spying moved forward in 2019, setting up a crucial decision for the Ninth Circuit in 2020.  We’ve pursued this case for over a decade because we believe that mass surveillance, like all general search and seizure schemes, is both illegal and unconstitutional.  The case arises from general seizures and searches conducted through three NSA surveillance programs: the NSA’s current Upstream tapping of the Internet backbone, its past actions collecting Internet metadata and its discontinued mass telephone records collection, purportedly authorized by section 215 of the Patriot Act. Congress just shamefully kicked debate on reauthorization of section 215 until March, 2020, even though it was stopped in 2018 after concerns of massive overcollection by the secret FISA Court and has never helped catch a terrorist.

In 2019, we had bad news and good news on the litigation front.

The bad news came in April, when the District Court ruled that, despite the enormous amount of direct and circumstantial evidence showing our clients’ communications likely swept up by the NSA dragnet surveillance to establish legal “standing,” no public court can rule on whether this surveillance is legal.  The Court agreed with the government that our claims were caught in a state secrets privilege Catch-22: no one can sue to stop illegal surveillance unless the court first determines that they were certainly touched by the vast surveillance mechanisms of the NSA. But the court cannot decide whether any particular person’s email, web searches, social media or phone calls were touched by the surveillance unless the government admits it – which the government will not do. This circular ruling matched an earlier ruling by the District Court under the Fourth Amendment, and, at long last, set both of these rulings up for review by the Ninth Circuit Court of Appeals. 

We made three key arguments in our opening briefs, filed in September:

• First, the state secrets privilege cannot prevent consideration of whether the spying is legal because Congress created special secrecy procedures to enable courts to decide the legality of electronic communications surveillance. The district court was required to use those procedures (contained in section 1806(f) of FISA). Indeed, the Ninth Circuit ruled just this past February that the state secrets privilege does not apply in these types of cases.
• Second, even if the secret evidence is excluded, there is ample public evidence, including extensive government admissions, from which a judge could conclude that it is more probable than not that plaintiffs’ phone records were collected, that their Internet communications were intercepted and searched, and that metadata records of their Internet communications were collected. This is all that is needed to establish legal “standing” to bring the lawsuit; the trial judge must thus consider the legality of the spying programs.
• Third, the Ninth Circuit should rule that the government’s interception of our clients’ Internet communications off of the Internet backbone without a warrant violated the Fourth Amendment.

We didn’t go to the Ninth Circuit alone, though. In early October six amicus briefs were filed in support of our case:

• The Center for Democracy and Technology and the New America Foundation’s Open Technology Institute, wrote about how national security surveillance is well known and discussed publicly by foreign governments and courts. CDT even issued a report on this along with their brief: Not a Secret: Bulk Interception Practices of Intelligence Agencies.”
• The ACLU wrote about why the State Secrets Privilege should not block the case.
• The National Association of Criminal Defense Lawyers wrote about the Fourth Amendment and specifically why the “special needs” exception to it does not apply.
• The Free Speech Coalition, Free Speech Defense and Education Fund, Downsize DC Foundation, DownsizeDC.org, Gun Owners Foundation, Gun Owners of America, Inc., Conservative Legal Defense and Education Fund, Poll Watchers, Policy Analysis Center, the Heller Foundation, and Restoring Liberty Action Committee wrote about how mass NSA surveillance violates the possessory interests in our communications and is a modern day general warrant.
• Human Rights Watch wrote about how human rights defenders are routinely subjected to mass surveillance and why the doctrine of “parallel construction” wrongly allows governments to hide misconduct and evade judicial review of mass surveillance.
• Reporters Committee for Freedom of the Press wrote about the disproportionate impact of mass surveillance on reporters and the protection of whistleblowers. 

The government’s responsive briefs are due in early December, with our final briefs likely due in January.  We’re hopeful that the Ninth Circuit will recognize the importance of the case and hold a hearing in the Spring. 

This article is part of our Year in Review series. Read other articles about the fight for digital rights in 2019.

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