Brief Filed Opposing NSA Mass Surveillance of Internet Communications
February 15, 2016
Jewel v. National Security Agency
(Read brief here)
From Charles Dickens' Bleak House we learned that some litigation can continue forever, enriching only the lawyers. And from Jewel v. NSA, we are learning that
even highly meritorious litigation against the government can be dragged out forever - until the plaintiffs run out of money.
The Jewel case was filed in 2008. It was sponsored by the Electronic Frontier Foundation, as a challenge to NSA's dragnet surveillance of Internet
communications. The twists and turns of this case demonstrate how difficult it can be to force federal judges to confront the unconstitutionality of
illegal actions by federal agencies - when the agency's defense is "national security."
In 2010, infamous LGBT in-the-closet former district judge Vaughn Walker of the U.S. District Court for the Northern District of California held that the
plaintiffs did not have standing to sue because the rights of too many persons were violated to allow any one person to have the type of "concrete and
particularized injury" to have standing.
On appeal, in 2011, the Ninth Circuit reversed, holding that the plaintiffs' complaint clearly met the test for standing, since they had alleged the NSA
seized their communications when it intercepted Internet traffic. The test devised by Judge Walker was rejected out of hand, for the common sense reason
that "the fact that a harm is widely shared does not necessarily render it a generalized grievance."
The case was remanded to the district court. By February 2015, Judge Walker had resigned, but another district judge again dismissed the case. This time
the judge claimed that the plaintiffs had failed to prove standing with evidence, because they could not show exactly what the NSA did with the Internet
traffic that it unconstitutionally intercepted.
However, the Court of Appeals previously had determined Plaintiffs had standing because they alleged that the government seized their communications. Thus,
it was of no significance that plaintiffs had not proved when and how the government actually searched their communications after they were in its possession.
On August 17, 2015, our firm filed one of only two amicus briefs in the Ninth Circuit supporting the second appeal. (The other brief was filed by the National
Association of Criminal Defense Lawyers.)
Our brief argued that the NSA's mass surveillance state is per se an unreasonable search and seizure under the Fourth Amendment. As the Supreme Court recently
re-recognized in U.S. v. Jones and Florida v. Jardines, the Fourth Amendment foremost protects property - not an amorphous expectation of privacy.
We argued that a digital dragnet of Internet communications violates the senders' and recipients' property rights by trespassing on the communications that
they have contracted with their Internet provider to transmit. It does not matter whether the government physically intruded on plaintiffs' property, as the
Supreme Court has recognized that trespasses can occur even when they are not visible to the naked eye.
Further, we argued that NSA mass surveillance is nothing more than a general warrant to rummage around in the private affairs of Americans, looking for
evidence of anything at all and nothing in particular, all of which is prohibited by the particularity requirement of the Fourth Amendment.
Finally, our brief countered the district court's position that the government could hide behind the "state secrets doctrine" to cover up grave, unprecedented,
and ongoing constitutional violations. The government has all but admitted that it violated the Fourth Amendment, and cannot be given a way out by claiming that divulging the scope of its crimes would harm the national security. Indeed, our amicus brief noted, protection of the Constitution is our country's foremost national security interest.
Thereafter, in an attempt to prevent the Ninth Circuit from addressing the merits of the case, a motion to dismiss the appeal was filed by the government.
On December 18, 2015, the Ninth Circuit granted the government's motion to dismiss the appeal on the ground that the Fourth Amendment issues in the case that
we addressed were intertwined with other issues not on appeal. The court decided that issuing a ruling on the Fourth Amendment issues "would only prolong
final resolution of the case."
In the time since the case was sent back to the district court yet again, the district judge appears to be seriously limiting the plaintiffs' ability to
conduct discovery, and otherwise making rulings seemingly designed to make it impossible to prove their case. Our view is that the Jewell case clearly would
lead to an injunction against the NSA dragnet surveillance - if the court were ever willing to consider the merits of the case. See
Timeline of NSA Domestic Spying.
While this case may never end, we thought that this would be as good a time as any to report on it, and to demonstrate that, in the hands of the modern
federal judiciary, the U.S. Constitution is proving to be a mere "parchment barrier" against government claims of "national security."
Our brief was filed on behalf of the U.S. Justice Foundation, Gun Owners of America, Inc., Gun Owners Foundation, Arizona State Chapter of the Association of
American Physicians and Surgeons, Free Speech Coalition, Free Speech Defense and Education Fund, The Lincoln Institute for Research and Education, Downsize DC
Foundation, The Abraham Lincoln Foundation for Public Policy Research, Inc., Institute on the Constitution, Conservative Legal Defense and Education Fund, and
Policy Analysis Center.
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