A lawsuit brought by a digital civil liberties group to curtail mass NSA surveillance hit a wall after a California district court sided with the government, and validated its argument that the state secrets doctrine protects the program that was challenged.
But on Tuesday, that same organization launched a new legal battle against a different spying program deployed by the feds against Americans citizens.
Judge Jeffery White told the Electronic Frontier Foundation that their clients, former AT&T customers including the case’ namesake, Carolyn Jewel, lacked standing in a case that dates back to 2008, when it was first argued that the NSA’s dragnet internet surveillance activities violated the Fourth Amendment.
Many of the allegations made by EFF in its case against the US government were verified in 2013, after journalists around the world published details of the NSA’s surveillance systems, based on documents provided by a former contractor for the agency, Edward Snowden.
Specific to this case, the reporting revealed how Section 702 of the FISA Amendments was used by US intelligence agencies to intercept troves of internet data from service providers, and by tapping directly into the fiber-optic connections that carry electronic communications.
However, Judge White said that classified evidence he had reviewed showed that the plaintiff’s claims were “substantially inaccurate.”
As a result, he said in his ruling, “The Court finds that Plaintiffs have failed to proffer sufficient admissible evidence to support standing on their claim for a Fourth Amendment violation of interference with their Internet communications.”
White then went ever further, saying that even if EFF were able to prove that their clients had standing, their argument would still be moot because the implicating evidence is classified.
“Having reviewed the Government Defendants’ classified submissions,” he said, “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.”
Judges in the recent past have regretted relying solely on the government’s secret evidence to rule on espionage programs. A Foreign Intelligence Surveillance Court ruling declassified in 2013 in response to a different suit brought by EFF showed how the NSA “substantially misrepresented” the scope of its spying activities.
Tuesday’s ruling only affected a portion of the EFF’s case in NSA v. Jewel. In the same litigation, the group is also challenging bulk collection of telephone metadata, another spy tool revealed by Snowden.
“We will continue to fight to end NSA mass surveillance,” said EFF Deputy General Counsel Kurt Opsahl in a statement after the decision.
“EFF is considering our next steps and will have more in-depth analysis of the court’s decision soon,” he added.
In the meantime, the group embarked on a separate and new legal battle against the government’s use of airplanes and fake cell phone towers to spy on large swaths of Americans below.
Late last year, the Wall Street Journal revealed the existence of the US Marshal Service program, which used small aircraft-mounted devices known as “dirtboxes” that mimicked cell-phone towers to collect location data.
Although thousands of completely innocent people could be monitored on a single flight, the Department of Justice was allowing these warrantless surveillance flights in at least five metropolitan areas.
The Sentinel previously reported how revelations about the program spooked Senators on the Judiciary Committee, causing them to write the Attorney General to demand more information.
EFF also sought out more information via the Freedom of Information Act. They submitted a request under the law in November last year. Having obtained no records yet, the organization announced on Tuesday that it’s filing suit against the Justice Department for not complying with the statute.
The group said in a statement they are “seeking a wide variety of records, including policies, procedures, training materials, communications about the legality of the program, and documentation of each use of the spy planes.”
“These devices pose obvious privacy concerns, but the government has been opaque about its use of stingrays,” EFF Legal Fellow Andrew Crocker said.
“It’s time to do away with the secrecy,” he added.
