Electronic Frontier Foundation
The Electronic Frontier Foundation (EFF) is an American international non-profit digital rights group based in San Francisco, California. It was founded in 1990 to promote Internet civil liberties.
It provides funds for legal defense in court, ...
(EFF) on behalf of American citizens who believed that they had been surveilled by the
National Security Agency
The National Security Agency (NSA) is an intelligence agency of the United States Department of Defense, under the authority of the director of national intelligence (DNI). The NSA is responsible for global monitoring, collection, and proces ...
(NSA) without a warrant.''Jewel v. National Security Agency'' 673 F. 3d 902 (9th Cir., 2011). The EFF alleged that the NSA's surveillance program was an "illegal and unconstitutional program of dragnet communications surveillance" and claimed violations of the Fourth Amendment.
Background
In 2006, journalists revealed a widespread warrantless wiretapping operation in the United States, in which government security officials worked with telecommunications firms to surveil the personal communications of citizens under the guise of protecting the country against terrorism. At about the same time, former AT&T engineer Mark Klein revealed that the company had allowed the
National Security Agency
The National Security Agency (NSA) is an intelligence agency of the United States Department of Defense, under the authority of the director of national intelligence (DNI). The NSA is responsible for global monitoring, collection, and proces ...
(NSA) to install a NarusInsight surveillance system in its San Francisco switching center ( Room 641A), which was capable of monitoring billions of bits of Internet traffic per second, including the playback of telephone calls routed on the Internet, and in effect spying upon the entirety of the communications of many American citizens and businesses who use the Internet.
Litigation history
District court case
In 2008, the
Electronic Frontier Foundation
The Electronic Frontier Foundation (EFF) is an American international non-profit digital rights group based in San Francisco, California. It was founded in 1990 to promote Internet civil liberties.
It provides funds for legal defense in court, ...
(EFF) initiated a class action lawsuit against the government on behalf of aggrieved citizens, with one named Carolyn Jewel volunteering to be named in the suit. The government moved to dismiss the suit because the plaintiffs could not prove direct personal injury from the surveillance, and thus lacked
standing
Standing, also referred to as orthostasis, is a position in which the body is held in an upright (orthostatic) position and supported only by the feet. Although seemingly static, the body rocks slightly back and forth from the ankle in the ...
to sue, while the surveillance program itself could remain confidential under the state secrets privilege. The case was first heard at the District Court for the Northern District of California. Judge Vaughn Walker dismissed the suit in January 2010, holding that the plaintiffs lacked legal standing because their claims amounted to a "general grievance" against the government, with no evidence of direct personal injury.
The EFF appealed this ruling to the Ninth Circuit Court of Appeals.
Circuit court ruling
On appeal, in December 2011 the Ninth Circuit initially reversed the District Court's dismissal of the complaint and remanded the case back to the lower court to further determine the validity of the government's state secrets privilege claim. The case was thus returned to the District Court for the Northern District of California but with few new developments for about the next 18 months.
Subsequent district court actions
In the meantime, NSA
whistleblower
Whistleblowing (also whistle-blowing or whistle blowing) is the activity of a person, often an employee, revealing information about activity within a private or public organization that is deemed illegal, immoral, illicit, unsafe, unethical or ...
William Binney testified in July 2012 in support of the EFF, claiming that the NSA was "purposefully violating the Constitution". The NSA's
mass surveillance
Mass surveillance is the intricate surveillance of an entire or a substantial fraction of a population in order to monitor that group of citizens. The surveillance is often carried out by Local government, local and federal governments or intell ...
program then became a matter of widespread public knowledge upon the revelations by Edward Snowden in June 2013.
In July 2013, District Court Judge Jeffrey White rejected the government's claim of state secrets privilege and allowed the EFF class action suit to continue, further holding that the surveillance program constituted a
search
Searching may refer to:
Music
* "Searchin', Searchin", a 1957 song originally performed by The Coasters
* Searching (China Black song), "Searching" (China Black song), a 1991 song by China Black
* Searchin' (CeCe Peniston song), "Searchin" (C ...
process that in turn required a warrant for each search, per the requirements of the Fourth Amendment.
Later in 2013 the court ordered the NSA to explain the perceived impact of the recent Snowden revelations on the ''Jewel'' case and on its general
national security
National security, or national defence (national defense in American English), is the security and Defence (military), defence of a sovereign state, including its Citizenship, citizens, economy, and institutions, which is regarded as a duty of ...
efforts. In December 2013, the government again claimed the state secrets privilege and declassified documents detailing its process while reaching this decision. The NSA in the meantime was destroying the relevant records, because it was required under the
Foreign Intelligence Surveillance Act
The Foreign Intelligence Surveillance Act of 1978 (FISA, , ) is a Law of the United States, United States federal law that establishes procedures for the surveillance and collection of foreign intelligence on domestic soil.
In March 2014, Judge White imposed a temporary restraining order, requiring the NSA to halt the destruction of evidence until a final resolution of the ''Jewel'' case. In June 2014, the EFF requested an emergency hearing requesting that the court enforce the temporary restraining order, after discovering that the government had continued the destruction of evidence. The NSA filed a counter-motion claiming that altering its process of deleting records and revealing the targets of its ongoing surveillance operation would have severe consequences "including the possible suspension of the Section 702 program and potential loss of access to lawfully collected signals intelligence information on foreign intelligence targets."Jewel v. National Security Agency, Emergency Motion to Stay the Court's June 5, 2014 Order, United States District for the Northern District of California Case No. 08-CV-4373-JSW 2014.
In February 2015, Judge White dismissed the latest motion by the EFF, accepting the NSA's argument that the requirements placed upon the agency would engender the "impermissible disclosure of state secret information," and he also held that the plaintiffs did not have
standing
Standing, also referred to as orthostasis, is a position in which the body is held in an upright (orthostatic) position and supported only by the feet. Although seemingly static, the body rocks slightly back and forth from the ankle in the ...
to pursue their claims. This procedural ruling allowed White to avoid addressing the constitutionality of the NSA's mass surveillance program.
Upon the disclosure of more information about the NSA's surveillance methods, the EFF filed another motion in May 2017 requesting that the agency disclose information about surveillance conducted against Carolyn Jewel and the other plaintiffs. Judge White granted this motion and ordered the government to hand over the information. However, the NSA filed a motion in opposition to that order, claiming once again that the plaintiffs lacked the standing to sue. After further arguments, the District Court accepted this argument in April 2019.
The EFF appealed that ruling to the Ninth Circuit. In a memorandum opinion, that court ruled in favor of the NSA, once again on the matter of standing. In June 2022, the EFF made a final request to the U.S. Supreme Court to take the case, but that court rejected the request and did not grant ''
certiorari
In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of a prerogative writ in England, issued by a superior court to direct that the recor ...
''.
Impact
The ultimate outcome of ''Jewel v. National Security Agency'' is that the U.S. government was able to avoid the Fourth Amendment implications of its mass surveillance program via procedural arguments about the need to keep its methods secret, while claiming that individual citizens cannot prove direct harm from the program. However, citizens have been unable to demonstrate
standing
Standing, also referred to as orthostasis, is a position in which the body is held in an upright (orthostatic) position and supported only by the feet. Although seemingly static, the body rocks slightly back and forth from the ankle in the ...
because the NSA has argued successfully that the evidence needed for that task must remain secret, thus creating a Catch-22 situation. This has generated some criticism, because while the NSA's argument could possibly be justified under old evidence-gathering processes, the ''Jewel'' case did not address the much easier collection of personal information enabled by modern Internet and telecommunications technologies.