Supreme Court Dismisses Challenge to FISA Amendments Act; EFF’s Lawsuit Over NSA Warrantless Wiretapping Remains
Yesterday, the Supreme Court sadly dismissed the ACLU’s case, Clapper v. Amnesty International, which challenged the FISA Amendments Act (FAA)—the unconstitutional law that allows the government to wiretap Americans communcating with people overseas. Under the FAA, the government can conduct this surveillance without naming individuals and without a traditional probable cause warrant, as the Fourth Amendment requires.
The court didn’t address the constitutionality of the FAA itself, but instead ruled that the plaintiffs—a group of lawyers, journalists, and human rights advocates who regularly communicate with likely “targets” of FAA wiretapping—couldn’t prove the surveillance was “certainly impending,” so therefore didn’t have the “standing” necessary to sue. In other words, since the Americans did not have definitive proof that they were being surveilled under the FAA—a fact the government nearly always keeps secret—they cannot challenge the constitutionality of the statute.
EFF’s Warrantless Wiretapping Case, Jewel v. NSA, Is Not Affected by Clapper
It’s shameful that the courts again have cut off another avenue for accountability regarding the NSA’s warrantless and unconstitutional surveillance activities. But as disappointing as the Clapper decision is, the good news is the decision likely won’t adversely affect our Jewel v. NSA lawsuit, which we argued in district court in December of 2012. Indeed, the Clapper decision makes the Jewel case one of the last remaining hopes for a court ruling on the legality of the warrantless surveillance of Americans, now conducted for over a decade.
The Ninth Circuit has already ruled that the Jewel plaintiffs have standing under settled law. The court’s decision is based on solid ground because we have presented the court with evidence that dragnet warrantless surveillance has already occurred, through testimony and documents from AT&T and NSA whistleblowers. In fact, the court specifically differentiated the two cases in its Jewel opinion: “Jewel has much stronger allegations of concrete and particularized injury than did the plaintiffs in Amnesty International. Whereas they anticipated or projected future government conduct, Jewel’s complaint alleges past incidents of actual government interception of her electronic communications.”
Clapper v. Amnesty’s Catch-22
Nonetheless, the Supreme Court’s requirement in Clapper that a future harm must be “certainly impending” to allow a case to go forward is very troubling, especially in the context of cases involving secret surveillance.
As Justice Stephen Breyer’s dissent points out, future conduct can never be predict anything with 100% certainty, and if certainty was a requirement for standing, then virtually no cases would ever reach conclusion. Justice Breyer runs through dozens of cases where standing has been found for plaintiffs in situations where plaintiffs had a reasonable fear of harm, and in many of those cases, the plaintiffs were much less certain than the lawyers, human rights workers and journalist in Clapper.
Breyer summed absurdity of the “certainly impending” standard by saying, “One can, of course, always imagine some special circumstance that negates a virtual likelihood, no matter how strong. But the same is true about most, if not all, ordinary inferences about future events. Perhaps, despite pouring rain, the streets will remain dry (due to the presence of a special chemical).”
This standard is especially problematic when the harm is illegal surveillance conducted via secret government programs. Unlike physical searches of the home, communications surveillance is by its nature hidden from the people affected, and national security surveillance is rarely made public or used in domestic criminal prosecutions. Thus, under the Supreme Court’s rule, regardless of whether its surveillance was legal or constitutional, the government can deny standing to a victim of illegal surveillance just by never revealing its illegal actions to the person affected. Essentially, one can’t challenge the government’s surveillance unless the government agrees.
Indeed, in arguing that its ruling does not mean that government surveillance under the FAA can never be reviewed by the courts, the Court could only point to situations in which the government intentionally revealed its surveillance.1
Allowing the Executive broad unfettered powers to “turn the Constitution on and off at will,” is exactly what the Supreme Court refused to do in Boumediene v. Bush, but what it appears to have allowed here.
It’s not even clear that the majority even understands the real scope of the FAA. In the opinion’s first sentence, Justice Alito refers to “individuals” that can be warrantlessly surveilled, but as we’ve explained many times, and the dissent notes, one of the most odious parts of the law is that it allows the government to get one court order for groups or categories of people—potentially thousands of people can be affected at a time.
The Shrinking Ranks of Warrantless Wiretapping Cases
This is the second ruling in the past year in which the government has convinced the court to dismiss challenges to the NSA warrantless wiretapping program on technical grounds, when there is ample evidence of wrongdoing. In 2012, the Ninth Circuit reluctantly dismissed the Al-Haramain case on “sovereign immunity” grounds despite a lower court ruling the government had violated the Fourth Amendment. The court reasoned that because of a glitch in the language of FISA statute, the plaintiffs had to sue individuals in the government in their personal capacities and couldn’t sue government agencies themselves or government officials in their official capacities.
We look forward to the district court in Jewel v. NSA determining that our case can move forward, and that the government can, once and for all, be held to account for the NSA’s unlawful and unconstitutional warrantless wiretapping program.
- 1. The court also noted that a provision of the FAA allows a service provider, presumably in a fit of patriotic fervor and a willingness to pay expensive attorneys for its customers, challenges the government on its own, in secret. Yet even under this provision, the victim of the surveillance is unable to seek judicial review.
The FBI has the e-mails of nearly all US citizens, including congressional members, according to NSA whistleblower William Binney. Speaking to RT he warned that the government can use information against anyone it wants.
One of the best mathematicians and code breakers in NSA history resigned in 2001 because he no longer wanted to be associated with alleged violations of the constitution.
He asserts, that the FBI has access to this data due to a powerful device Naris.
This year Binney received the Callaway award. The annual award was established to recognize those, who stand out for constitutional rights and American values at great risk to their personal or professional lives.
RT: In light of the Petraeus/Allen scandal while the public is so focused on the details of their family drama one may argue that the real scandal in this whole story is the power, the reach of the surveillance state. I mean if we take General Allen – thousands of his personal e-mails have been sifted through private correspondence. It’s not like any of those men was planning an attack on America. Does the scandal prove the notion that there is no such thing as privacy in a surveillance state?
William Binney: Yes, that’s what I’ve been basically saying for quite some time, is that the FBI has access to the data collected, which is basically the e-mails of virtually everybody in the country. And the FBI has access to it. All the congressional members are on the surveillance too, no one is excluded. They are all included. So, yes, this can happen to anyone. If they become a target for whatever reason – they are targeted by the government, the government can go in, or the FBI, or other agencies of the government, they can go into their database, pull all that data collected on them over the years, and we analyze it all. So, we have to actively analyze everything they’ve done for the last 10 years at least.
RT:And it’s not just about those, who could be planning, who could be a threat to national security, but also those, who could be just…
WB: It’s everybody. The Naris device if it takes in the entire line, so it takes in all the data. In fact they advertised they can process the lines at session rates, which means 10 gigabit lines. I forgot the name of the device (it’s not the Naris) – the other one does it at 10 gigabits. That’s why the building Buffdale, because they have to have more storage, because they can’t figure out what’s important, so they are just storing everything there. So, e-mails are going to be stored there for the future, but right now stored in different places around the country. But it is being collected – and the FBI has access to it.
RT:You mean it’s being collected in bulk without even requesting providers?
RT:Then what about Google, you know, releasing this biannual transparency report and saying that the government’s demands for personal data is at an all-time high and for all of those requesting the US, Google says they complied with the government’s demands 90% of the time. But they are still saying that they are making the request, it’s not like it’s all being funneled into that storage. What do you say to that?
WB: I would assume, that it’s just simply another source for the same data they are already collecting. My line is in declarations in a court about the 18-T facility in San Francisco, that documented the NSA room inside that AST&T facility, where they had Naris devices to collect data off the fiber optic lines inside the United States. So, that’s kind of a powerful device, that would collect everything it was being sent. It could collect on the order over one hundred billion one thousand character e-mails a day. One device.
RT:You say they sift through billions of e-mails. I wonder how do they prioritize? How do they filter it?
WB: I don’t think they are filtering it. They are just storing it. I think it’s just a matter of selecting when they want it. So, if they want to target you, they would take your attributes, go into that database and pull out all your data.
RT:Were you on the target list?
WB: Oh, sure! I believe I’ve been on it for quite a few years. So I keep telling them everything I think of them in my e-mail. So that when they want to read it they’ll understand what I think of them.
RT:Do you think we all should leave messages for the NSA mail box?
RT:You blew the whistle on the agency when George W. Bush was the President. With President Obama in office, in your opinion, has anything changed at the agency – in the surveillance program? In what direction is this administration moving?
WB: The change is it’s getting worse. They are doing more. He is supporting the building of the Buffdale facility, which is over two billion dollars they are spending on storage room for data. That means that they are collecting a lot more now and need more storage for it. That facility by my calculations that I submitted to the court for the electronic frontiers foundation against NSA would hold on the order of 5 zettabytes of data. Just that current storage capacity is being advertised on the web that you can buy. And that’s not talking about what they have in the near future.
RT:What are they going to do with all of that? Ok, they are storing something. Why should anybody be concerned?
WB: If you ever get on the enemies list, like Petraeus did or… for whatever reason, than you can be drained into that surveillance.
RT:Do you think they would… General Petraeus, who was idolized by the same administration? Or General Allen?
WB: There are certainly some questions, that have to be asked, like why would they target it (to begin with)? What law were they breaking?
RT:In case of General Petraeus one would argue that there could have been security breaches. Something like that. But with General Allen – I don’t quite understand, because when they were looking into his private e-mails to this woman.
WB: That’s the whole point. I am not sure what the internal politics is… That’s part of the program. This government doesn’t want things in the public. It’s not a transparent government. Whatever the reason or the motivation was, I don’t really know, but I certainly think, that there was something going on in the background, that made them target those fellows. Otherwise why would they be doing it? There is no crime there.
RT:It seems that the public is divided between those, who think that the government surveillance program violates their civil liberties, and those, who say: “I’ve nothing to hide. So, why should I care?” What do you say to those, who think that it shouldnt concern them.
WB: The problem is if they think they are not doing anything that’s wrong, they don’t get to define that. The central government does, the central government defines what is right and wrong and whether or not they target you. So, it’s not up to the individuals. Even if they think they are doing something wrong, if their position on something is against what the administration has, then they could easily become a target.
RT:Tell me about the most outrageous thing that you came across during your work at the NSA.
WB: The violations of the constitution and any number of laws that existed at the time. That was the part that I could not be associated with. That’s why I left. They were building social networks on who is communicating and with whom inside this country. So that the entire social network of everybody, of every US citizen was being compiled overtime. So, they are taking from one company alone roughly 320 million records a day. That’s probably accumulated probably close to 20 trillion over the years. The original program that we put together to handle this to be able to identify terrorists anywhere in the world and alert anyone that they were in jeopardy. We would have been able to do that by encrypting everybody’s communications except those, who were targets. So, in essence you would protect their identities and the information about them until you could develop probable cause, and once you showed your probable cause, then you could do a decrypt and target them. And we could do that and isolate those people all alone. It wasn’t a problem at all. There was no difficulty in that.
RT:It sounds very difficult and very complicated. Easier to take everything in and…
WB: No. It’s easier to use the graphing techniques, if you will, for the relationships for the world to filter out data, so that you don’t have to handle all that data. And it doesn’t burden you with a lot more information to look at, than you really need to solve the problem.
RT:Do you think that the agency doesn’t have the filters now?
RT:You have received the Callaway award for civic courage. Congratulations! On the website and in the press release it says: “It is awarded to those, who stand out for constitutional rights and American values at great risk to their personal or professional lives.” Under the code of spy ethics (I don’t know if there is such a thing) your former colleagues, they probably look upon you as a traitor. How do you look back at them?
WB: That’s pretty easy. They are violating the foundation of this entire country. Why this entire government was formed? It’s founded with the constitution and the rights were given to the people in the country under that constitution. They are in violation of that. And under executive order 13526, section 1.7 (governing classification) – you can not classify information to just cover up a crime, which this is- and that was signed by President Obama. Also President Bush signed it earlier executive order, a very similar one. If any of this comes into Supreme court and they rule it unconstitutional, then the entire house of cards of the government falls.
RT:What are the chances of that? What are the odds?
WB: The government is doing the best they can to try to keep it out of court. And, of course, we are trying to do the best we can to get into court. So, we decided it deserves a ruling from the Supreme court. Ultimately the court is supposed to protect the constitution. All these people in the government take an oath to defend the constitution. And they are not living up to the oath of office.
RT:Thank you for this interview.
WB: You are welcome.
The US National Security Agency isn’t outright rejecting claims that they’ve been conducting surveillance on everyone in the country, but they want Americans to at least give them the benefit of the doubt when it comes to their intentions.
The NSA was in court again this week to challenge a potential class action lawsuit that aims to end the governmental agency’s electronic surveillance program begun by President George W. Bush in the aftermath of the September 11, 2001 terrorist attacks; but while the plaintiffs in the case want to abolish the warrantless wiretapping and spying on innocent civilians started under that administration’s Terrorist Surveillance Program, the government’s argument is now one that requires Americans to accept the agency’s insistence they’re really not up to anything worth worrying about, Courthouse News reports.
In Federal Court this week, the NSA said that the public should simply trust the government when they say they aren’t abusing any powers legally or illegally in place to engage in clandestine surveillance of each and every citizen.
A San Francisco courthouse was the venue for the latest episode in the matter of Jewel v. NSA, a 4-year-old case that charges the spy agency with once and still operating an “illegal and unconstitutional program of dragnet communications surveillance.” Lead plaintiff Carolyn Jewel brought on the suit back in 2008 with the assistance of the Electronic Frontier Foundation and on behalf of current and former customers of AT&T who say they were affected when the telecom giant allowed the NSA unfettered access to their systems to spy on the communications of any customers they wish.
The plaintiffs say that the NSA ordered the attachment of surveillance devices to AT&T’s master network in order to have the ability to divert any communication routed through their service to secure facilities to allow for “an unprecedented suspicionless general search.” When former NSA senior executive Thomas Drake condemned the agency’s overly broad and costly surveillance of innocent Americans in 2007, the government attempted to silence him by filing an indictment under the Espionage Act of 1917.
When Jewel v NSA ended up in federal court in 2010, US District Court Chief Judge Vaughn Walker originally dismissed the case, only for the Ninth Circuit Court of Appeals deciding to reinstate it last year.
“Since September 11 and now, through two administrations, the executive has engaged in unprecedented assertions of power without regard to the constitutional and statutory limits of its authority,” attorney Richard Wiebe wrote in the case’s initial filings. “It has correspondingly sought to exclude the judiciary from adjudicating whether these exercises of executive power have stayed within the limits set by the Constitution and by Congress.”
Currently, the government alleges that they do not have to respond to charges of unwarranted eavesdropping because they have immunity in instances where disclosure could disrupt national security. As Courthouse News previously reported, the federal government “claims to have invoked state secrets privileges that protects it from any litigation consequentially stemming from supposed violations of those acts.” Plaintiffs, however, say that the government waived its right to sovereign immunity when it put itself in violation of the Foreign Intelligence Surveillance Act (FISA) as well as the US Constitution’s Fourth Amendment that protects Americans from unlawful searches and seizures.
Dozens of similar lawsuits against Verizon and other telecommunication companies were initially filed during the George W. Bush administration, but amendments added to the Foreign Intelligence Surveillance Act (FISA) in 2008 granted those companies immunity to civil actions “providing assistance to an element of the intelligence community.” Now, however, plaintiffs say the government must be held accountable for their own violations of FISA and the Constitution.
Responding to the case earlier this month, the government insisted, “The Foreign Intelligence Surveillance Act does not authorize a claim against the Government defendants sued in their official capacities, the state secrets privilege bars the litigation of plaintiffs’ remaining claims and the state secrets privilege is not displaced by the FISA.”
“[T]he disclosure of sensitive intelligence sources and methods . . . reasonably could be expected to cause exceptionally grave harm to national security,” the government wrote in one of three motions filed so far to put Jewel v. NSA to rest. “The very purpose of these cases is to put at issue whether the NSA undertook certain alleged activities under presidential authorization after 9/11, and whether those activities continue today. At every stage, from standing to the merits, highly classified and properly privileged intelligence sources and methods are at risk of disclosure. The law is clear, however, that where litigation risks or requires the disclosure of information that reasonably could be expected to harm national security, dismissal is required.”
Wiebe and the plaintiffs see things another way, though, and wrote earlier that “The government here seeks to transform the state secrets privilege from a powerful but targeted evidentiary shield into a justiciability sword, preventing the Judiciary from engaging in its constitutional duty.”
The government’s goal, Wiebe continued, “is to convince this court to close its eyes to a program that impacts every American who uses a phone, email or the Internet. The judiciary must recognize the dangers of allowing the executive to distort narrow exceptions like the state secrets privilege into broad unfettered power to ‘turn the Constitution on or off at will.’ Even in the case involving war powers, the Supreme Court has confirmed that the ‘war power does not remove constitutional limitations safeguarding essential liberties.’”
This week the government did not fight back as hard to defend any surveillance practices engaged by either the George W. Bush or Obama administrations, but said innocent Americans should trust that they aren’t in danger of being watched.
“This lawsuit puts at issue alleged intelligence activities of the National Security Agency (‘NSA’) purportedly undertaken pursuant to presidential authorization since the terrorist attacks of September 11, 2001,” the NSA says in their latest response. “For the past six years, the nation’s most senior intelligence officials, in succeeding administrations, have consistently advised this court that litigation of plaintiffs’ allegations would risk exceptional damage to national security, setting forth in detail the matters at issue. Renewed invocation of the state secrets privilege in this action by the Director of National Intelligence has undergone rigorous review within the Executive Branch under a process providing that privilege will only be asserted where necessary to protect against significant harm to national security. Contrary to plaintiffs’ suggestion, in these circumstances dismissal would not constitute an abdication of judicial authority, but the exercise of judicial scrutiny of the privileged information at issue and the application of established law to protect compelling national security interests.”
US District Judge Jeffery White will consider the latest motion on November 2 and could decide to let the arguments be brought to trial. If the case is allowed and elevated to class action status as the plaintiffs hope, attorneys fear that a victory for the NSA would mean the continuation of warrantless dragnet surveillance would continue — this time on-the-books.
This week, the Senate will be voting on a slew of amendments to the newest version of the Senate’s cybersecurity bill. Senators John McCain and Kay Bailey Hutchison have proposed several amendments that would hand the reins of our nation’s cybersecurity systems to the National Security Agency (NSA). All of the cybersecurity bills that have been proposed would provide avenues for companies to collect sensitive information on users and pass that data to the government. Trying to strike the balance between individual privacy and facilitating communication about threats is a challenge, but one thing is certain: the NSA has proven it can’t be trusted with that responsibility. The NSA’s dark history of repeated privacy violations, flouting of domestic law, and resistance to transparency makes it clear that the nation’s cybersecurity should not be in its hands.
In case you need a refresher, here’s an overview of why handing cybersecurity to the NSA would be a terrible idea:
- An executive order generally prohibits NSA from conducting intelligence on Americans’ domestic activities
Executive Order 12333 signed by President Reagan in 1981 (and amended a few times since1), largely prohibits the NSA from spying on domestic activities:
no foreign intelligence collection by such elements [of the Intelligence Community] may be undertaken for the purpose of acquiring information concerning the domestic activities of United States persons.
If amended, the Cybersecurity Act would allow the NSA to gain information related to “cybersecurity threat indicators,” which would allow it to collect vast quantities of data that could include personally identifiable information of U.S. persons on American soil. Law enforcement and civilian agencies are tasked with investigating and overseeing domestic safety. The NSA, on the other hand, is an unaccountable military intelligence agency that is supposed to focus on foreign signals intelligence—and it’s frankly dangerous to expand the NSA’s access to information about domestic communications.
- NSA has a dark history of violating Americans’ constitutional rightsIn the 1960’s, a Congressional investigation, led by four-term Senator Frank Church, found that the NSA had engaged in widespread and warrantless spying on Americans citizens. Church was so stunned at what he found, he remarked that the National Security Agency’s “capability at any time could be turned around on the American people, andno American would have any privacy left, such is the capability to monitor everything.” (emphasis added) The investigation led to the passage of the Foreign Intelligence Surveillance Act, which provided stronger privacy protections for Americans’ communications—that is, until it was weakened by the USA-PATRIOT Act and other reactions to 9/11.
- NSA has continued its warrantless wiretapping scandalIn 2005, the New York Times revealed that the NSA set up a massive warrantless wiretapping program shortly after 9/11, in violation of the Fourth Amendment and several federal laws. This was later confirmed by virtually every major media organization in the country. It led to Congressional investigations and several ongoing lawsuits, including EFF’s. Congress passed the FISA Amendments Act to granttelecom companies retroactive immunity for participating in illegal spying and severely weaken privacy safeguards for Americans communicating overseas.Since the FISA Amendments Act (FAA) passed, the NSA has continued collecting emails of Americans. A 2009 New York Times investigation described how a “significant and systemic” practice of “overcollection” of communications resulted in the NSA’s intercepting millions of purely domestic emails and phone calls between Americans. In addition, documents obtained via a Freedom of Information Act request by the ACLU, although heavily redacted, revealed “that violations [of the FAA and the Constitution] continued to occur on a regular basis through at least March 2010″— the last month anyone has public data for.
- NSA recently admitted to violating the Constitution.Just last week, the Office of the Director of National Intelligence—which oversees the NSA—begrudgingly acknowledged that “on at least one occasion” the secret FISA court “held that some collection… used by the government was unreasonable under the Fourth Amendment.” Wired called it a “federal sidestep of a major section of the Foreign Intelligence Surveillance Act,” and it confirmed the many reports over the last few years: the NSA has violated the Constitution.
- NSA keeps much of what it does classified and secretBecause cybersecurity policy is inescapably tied to our online civil liberties, it’s essential to maximize government transparency and accountability here. The NSA may be the worst government entity on this score. Much of the NSA’s work is exempt from Freedom of Information Act (FOIA) disclosure because Congress generally shielded NSA activities from FOIA2. Even aside from specific exemption statutes, much information about NSA activities is classified on national security grounds. The NSA has also stonewalled organizations trying to bring public-interest issues to light by claiming the “state secrets” privilege in court. EFF has been involved in lawsuits challenging the NSA’s warrantless surveillance program since 2006. Despite years of litigation, the government continues to maintain that the “state secrets” privilege prevents any challenge from being heard. Transparency and accountability simply are not the NSA’s strong suit.
We remain unconvinced that we need any of the proposed cybersecurity bills, but we’re particularly worried about attempts to deputize the NSA as the head of our cybersecurity systems. And even the NSA has admitted that it does “not want to run cyber security for the United States government.”
Thankfully, new privacy changes in the cybersecurity bill heading towards the Senate floor have explicitly barred intelligence agencies like the NSA from serving as the center of information gathering for cybersecurity. We need to safeguard those protections and fend off amendments that give additional authority to the NSA. We’re asking concerned individuals to use our Stop Cyber Spying tool to tweet at their Senators or use the American Library Association’s simple tool to call Senators. We need to speak out in force this week to ensure that America’s cybersecurity systems aren’t handed to the NSA.
- 1. Executive Order 12333 was amended in 2003 by Executive Order 13284, in 2004 by Executive Order 13355, and in 2008 by Executive Order 13470. The resulting text of Executive Order 12333 is available here (pdf).
- 2. Three of the most common statutes that NSA uses to fight transparency: Section 6 of the National Security Agency Act of 1959 (Public Law 86-36, 50 U.S.C. Sec. 402 note), which provides that no law shall be construed to require the disclosure of, inter alia, the functions or activities of NSA; The Intelligence Reform and Terrorism Prevention Act of 2004, 50 U.S.C. Sec. 403- 1(i), which requires under the Responsibilities and Authorities of the Director of National Intelligence that we protect information pertaining to intelligence sources and methods; and 18 U.S.C. Sec. 798, which prohibits the release of classified information concerning communications intelligence and communications security information to unauthorized persons.
- Congress Must Act After US Government Admits To Unconstitutional Warrantless Wiretapping For the First Time (eff.org)
- Why won’t the Obama administration reveal how many Americans’ emails the NSA has collected and reviewed without a warrant? (eff.org)
- NSA whistle blowers allege data being collected on every American (rawstory.com)
- Why won’t the Obama administration reveal how many Americans’ emails the NSA has collected and reviewed without a warrant? (informationliberation.com)
EFF Asks Court to Reject Stale State Secret Arguments So Case Can Proceed
San Francisco – Three whistleblowers – all former employees of the National Security Agency (NSA) – have come forward to give evidence in the Electronic Frontier Foundation’s (EFF’s) lawsuit against the government’s illegal mass surveillance program, Jewel v. NSA.
In a motion filed today, the three former intelligence analysts confirm that the NSA has, or is in the process of obtaining, the capability to seize and store most electronic communications passing through its U.S. intercept centers, such as the “secret room” at the AT&T facility in San Francisco first disclosed by retired AT&T technician Mark Klein in early 2006.
“For years, government lawyers have been arguing that our case is too secret for the courts to consider, despite the mounting confirmation of widespread mass illegal surveillance of ordinary people,” said EFF Legal Director Cindy Cohn. “Now we have three former NSA officials confirming the basic facts. Neither the Constitution nor federal law allow the government to collect massive amounts of communications and data of innocent Americans and fish around in it in case it might find something interesting. This kind of power is too easily abused. We’re extremely pleased that more whistleblowers have come forward to help end this massive spying program.”
The three former NSA employees with declarations in EFF’s brief are William E. Binney, Thomas A. Drake, and J. Kirk Wiebe. All were targets of a federal investigation into leaks to the New York Times that sparked the initial news coverage about the warrantless wiretapping program. Binney and Wiebe were formally cleared of charges and Drake had those charges against him dropped.
Jewel v. NSA is back in district court after the 9th U.S. Circuit Court of Appeals reinstated it in late 2011. In the motion for partial summary judgment filed today, EFF asked the court to reject the stale state secrets arguments that the government has been using in its attempts to sidetrack this important litigation and instead apply the processes in the Foreign Intelligence Surveillance Act that require the court to determine whether electronic surveillance was conducted legally.
“The NSA warrantless surveillance programs have been the subject of widespread reporting and debate for more than six years now. They are just not a secret,” said EFF Senior Staff Attorney Lee Tien. “Yet the government keeps making the same ‘state secrets’ claims again and again. It’s time for Americans to have their day in court and for a judge to rule on the legality of this massive surveillance.”
For the full motion for partial summary judgment:
For more on this case:
Electronic Frontier Foundation
Senior Staff Attorney
Electronic Frontier Foundation
The former NSA official held his thumb and forefinger close together. “We are, like, that far from a turnkey totalitarian state,” he says. — Wired Magazine, April 2012
Last week, in Wired Magazine, noted author James Bamford reported on an expansive $2 billion “data center” being built by the NSA in Utah that will house an almost unimaginable amount of data on its servers, along with the world’s fastest supercomputers. Part of the purpose of this new center, according to Bamford, is to store “all forms of communication, including the complete contents of private emails, cell phone calls, and Google searches, as well as all sorts of personal data trails—parking receipts, travel itineraries, bookstore purchases, and other digital ‘pocket litter.’”
In the Wired article, Bamford interviewed former NSA official William Binney, a “crypto-mathematician largely responsible for automating the agency’s worldwide eavesdropping network.” Binney further shed light on the NSA’s warrantless wiretapping program, first exposed by the New York Times in 2005 and the subject of EFF’s long running suit Jewel v. NSA, which challenges the constitutionality of the NSA’s program.
The NSA claims it only has access to emails and phone calls of non-U.S. citizens overseas, but Binney provides more detail to the many previous reports by the New York Times, USA Today, New Yorker, and many more that the program indeed targets US based email records. In the 11 years since 9/11, Binney estimates 15 to 20 trillion “transactions” have been collected and stored by the NSA. From the Wired article:
He explains that the agency could have installed its tapping gear at the nation’s cable landing stations—the more than two dozen sites on the periphery of the US where fiber-optic cables come ashore. If it had taken that route, the NSA would have been able to limit its eavesdropping to just international communications, which at the time was all that was allowed under US law. Instead it chose to put the wiretapping rooms at key junction points throughout the country—large, windowless buildings known as switches—thus gaining access to not just international communications but also to most of the domestic traffic flowing through the US. The network of intercept stations goes far beyond the single room in an AT&T building in San Francisco exposed by a whistle-blower in 2006. “I think there’s 10 to 20 of them,” Binney says. “That’s not just San Francisco; they have them in the middle of the country and also on the East Coast.”
The Director of NSA, General Keith Alexander, testified at a House subcommittee hearing Tuesday and Rep. Hank Johnson (D-GA) grilled him on the details of the Wired story. He appeared to deny the main points of the article, including that the NSA was intercepting emails, phone calls, Google searches, and phone records of individuals in the United States—as well as the technical capabilities of the program’s software described by Binney. But perhaps more strangely, Alexander also seemed to claim the NSA did not have the technical ability to collect Americans’ emails and Internet traffic even if it weren’t required to get a warrant:
Gen. Alexander: In the United States we’d have to go through the FBI process, a warrant to get that and serve it to somebody to actually get it.
Rep. Johnson: But you do have the capability of doing it?
Gen. Alexander: Not in the United States.
Rep. Johnson: Not without a warrant?
Gen. Alexander: We don’t have the technical insights in the United States, in other words, you have to have something to intercept or some way of doing that. Either by going to a service provider with a warrant, or you have to be collecting in that area. We’re not authorized to collect, nor do we have the equipment in the United States to actually collect that kind of information. (emphasis ours)
In our lawsuits, EFF has provided evidence that the NSA operated a monitoring center out of AT&T’s switching facility in San Francisco that has the ability to do exactly what Gen. Alexander says the NSA can’t. In light of all the evidence, it is hard to take comfort from Gen. Alexander’s apparent denial. In previous discussions of the warrantless wiretapping program, the government has used crabbed and unusual definitions of words to make misleading statements that also seem like denials but turn out to be largely word games.
In one prominent example, then Principal Deputy Director of National Intelligence Michael Hayden said in a 2006 statement: “Let me talk for a few minutes also about what this program is not. It is not a driftnet over Dearborn or Lackawanna or Freemont grabbing conversations…” Later, when confronted with evidence of a wider drift net program during his confirmation hearing, he explained “I pointedly and consciously downshifted the language I was using. When I was talking about a drift net over Lackawanna or Freemont or other cities, I switched from the word ‘communications’ to the much more specific and unarguably accurate ‘conversation.’”
Notably, the NSA’s interpretation of what it means to “collect” communications seems to be quite limited. Under Department of Defense regulations, information is considered to be “collected” only after it has been “received for use by an employee of a DoD intelligence component,” and “[d]ata acquired by electronic means is ‘collected’ only when it has been processed into intelligible form[,]” So, under this definition, if the communications of millions of ordinary Americans were gathered and stored indefinitely in Utah, it would not be “collected” until the NSA “officially accepts, in some manner, such information for use within that component.”
The illegality of warrantless wiretapping, however, does not depend on when the NSA officially accepts the information or processes it into intelligible form (whatever that means). Americans’ privacy and constitutional protections do and should not hinge on word games. We are looking forward to establishing, in the Jewel v. NSA case, a simpler proposition: that the government can’t spy on anyone, much less everyone, without a warrant.
RTAmerica on March 23, 2012
Recently a report by Wired magazine revealed the details of a spy center in Bluffdale, Utah. It says that the National Security Agency has turned its surveilance apparatus on the US and its citizens, including phone calls and emails. This week the NSA chief testified to Congress and took questions about his agency’s ability – both legally and physically – to spy on US citizens and denied that this is happening. Trevor Timm, an activist with the Electronic Frontier Foundation believes otherwise – he brings his take on the issue.