The EFF has asked a federal judge to rule that the NSA’s collection of massive amounts of upstream user data is unconstitutional, violating the Fourth Amendment. The motion for partial summary judgment in the case of Jewel v. NSA, a six-year-old lawsuit related to NSA data collection on AT&T’s network, is based mainly on statements from the government itself about how it conducts such collection.
The Jewel lawsuit is a long-running case that stems from revelations several years ago that AT&T had installed secret taps that allegedly copied massive amounts of inbound and outbound Internet traffic on its network and handed that data to the NSA. The suit was filed by the EFF on behalf of Carolyn Jewel, an AT&T customer, and alleges that much of what the NSA collects via the tap is domestic communications.
The motion by the EFF, filed late last week, is based on the government’s own descriptions of its data collection and alleges that the collection violates customers’ Fourth Amendment right to protection from unreasonable search and seizure.
“We believe there is enough on the record now for the judge to rule that both the initial mass seizure and the subsequent searching of the content of Internet communications are unconstitutional,” EFF Legal Director Cindy Cohn said. “By installing fiber-optic splitters on the Internet backbone, and then searching through tens of millions of Internet communications it collects, the NSA is conducting suspicionless and indiscriminate mass surveillance that is like the abusive ‘general warrants’ that led the nation’s founders to enact the Fourth Amendment.”
The documents leaked by former NSA contractor Edward Snowden have provided a detailed picture of large portions the surveillance capabilities the NSA has, including Internet traffic collection at various points on the Internet’s backbone. The agency is tasked with gathering intelligence on foreign targets, and much of the what Snowden has revealed in the last year has shown how much data the agency collects on Americans during the course of its operations against foreigners. Intelligence officials argue that most data collected on Americans is incidental to its official mission and is subject to strict minimization procedures.
But the EFF says in its suit that the NSA’s deep penetration of the Internet has compromised the network itself and violates the Constitutional rights of Americans.
“The eyes and ears of the government now sit on the Internet. The government indiscriminately copies and searches communications passing through the Internet’s key domestic junctions, on what is called the Internet ‘backbone.’ By doing so, the government is operating a digital dragnet—a technological surveillance system that makes it impossible for ordinary Americans not suspected of any wrongdoing to engage in a fully private online conversation, to privately read online, or to privately access any online service. Millions of innocent Americans have their communications seized and searched as part of this dragnet even when the government is not targeting them or those with they communicate. This unprecedented mass surveillance violates the core purpose of the Fourth Amendment—to protect Americans’ privacy against indiscriminate and suspicionless searches and seizures,” the motion says.
EFF officials say that there is enough evidence in statements made by United States government officials about the NSA’s collection methods for the judge to grant the motion for summary judgment, which requires agreement on the facts by both parties.
“This motion is based almost entirely on the government’s formal, acknowledged admissions. This is because a Motion for Partial “Summary Judgment,” such as this one, cannot be decided if the parties disagree about material facts. It is a common litigation strategy to make a motion based upon the undisputed facts so that the court can rule on an important legal issue, even if there are other facts that are not yet agreed upon,” Cohn and Andrew Crocker of the EFF said in a post explaining the legal basis for the motion.
“In essence, we are saying that even if you accept the government’s own descriptions of its internet backbone spying, the spying is still unconstitutional.”