March 9th, 2015

Federal Judge Dismisses Challenge of NSA’s Internet Surveillance

By: Nicholas Morales

Last month marked a blow for plaintiffs in Electronic Frontier Foundation’s (EFF) lawsuit against mass surveillance, Jewel v. NSA. EFF filed the class action suit on behalf of AT&T customers whose Internet history is being recorded by the National Security Agency.

The case was filed on September 18, 2008 after various documents were made public by whistleblower and former AT&T employee Mark Klein. Klein’s documents along with testimony by NSA whistleblower William Binney revealed a tap on AT&T’s fiber optic Internet backbone. As details began to emerge, many began to suspect that the NSA was engaging in Upstream collection, a surveillance technique that stores Internet users’ traffic history as it traverses the backbone. In their filing, EFF’s clients alleged that the Upstream collection, as well as the collection of telephone call detail records, violated the First and Fourth Amendments to the Constitution, as well as several other laws related to electronic surveillance.

On February 10, 2015 Judge Jeffrey White of the U.S. District Court for the Northern District of California dismissed the challenge of the constitutionality of the Internet data collection program. In his ruling, Judge White stated that the challenge would require an impermissible disclosure of secret information that could jeopardize national security and also ruled that the plaintiffs did not have standing to pursue the claims. The court also found that the plaintiffs lacked proper standing. Judge White stated that because plaintiffs could not prove that the surveillance occurred as they alleged, they did not have the standing to challenge the program’s constitutionality.

EFF criticized the ruling for allowing state secrets to “trump the judicial process” and vowed to continue its case against the NSA. It should be noted that Judge White’s ruling did not decide the legality of the NSA’s Internet surveillance practices, nor does the ruling apply to the challenge of the constitutionality of the NSA’s surveillance of telephone records.