Jewel v. National Security Agency: Mass Surveillance

By: Nireeti Gupta

Panel 9

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The case before the District Court of California, was filed in 2008 by Electronic Front Frontier on behalf of AT&T customer Carolyn Jewel. The case took on renewed importance in the wake of the Snowden leaks which exposed top-secret information about the National Security Agency’s (‘NSA’) surveillance of Internet communications.

Judge Jeffrey White on February 10, 2015 ruled in favor of NSA in a lawsuit challenging the interception of Internet communications without a warrant.

The Plaintiff had alleged that as part of a system of mass surveillance, the Government receives copies of their Internet communications, then filters the collected communications in an attempt to remove wholly domestic communications, and then search the remaining communications for potentially terrorist-related foreign intelligence information. Plaintiff contended that NSA taps into the fiber cables that make up the backbone of the Internet and gathers information about people’s online and phone communications (‘Upstream Program’).

The Plaintiffs argued that the copying and searching of their private internet communications is conducted without a warrant or any individualized suspicion and, therefore, violates the Fourth Amendment. The Fourth Amendment prohibits the Government from intercepting, copying, or searching through communications without first obtaining a warrant based on probable cause, particularly describing the place to be searched and the things to be seized.

The Government described the collection of communications pursuant to Section 702 of the Foreign Intelligence Surveillance Act. Upon approval by the Foreign Intelligence Surveillance Court, NSA analysts identify non-U.S. persons located outside the United States who are reasonably believed to possess or receive, or are likely to communicate, foreign intelligence information.

Once designated by the NSA as a target, the NSA tries to identify a specific means by which the target communicates, such as an e-mail address or telephone number. That identifier is referred to a “selector.” Selectors are only specific communications accounts, addresses, or identifiers. According to the Government’s admissions, an electronic communications service provider may then be compelled to provide the Government with all information necessary to acquire communications associated with the selector. However, it claimed that the information necessary to litigate Plaintiff’s claims is subject to and excluded from use by the “state secret privilege” and other related privileges and that their cases should be dismissed.

Judge White found that Plaintiff had not established sufficient standing to sue under the Fourth Amendment, that is, they did not present enough evidence to prove that they had been directly harmed by NSA’s actions, and so had no grounds on which to sue. Judge White further added that a potential Fourth Amendment claim would have to be dismissed on the basis that any possible defenses would require impermissible disclosure of state secret information.