Federal Judge Dismissed Challenge to NSA Surveillance on Secrecy Grounds
In February 2015, U.S. District Judge Jeffrey White ruled in favor of the National Security Agency in the landmark case Jewel v. NSA, dismissing a challenge to the government’s mass surveillance programs. The ruling effectively determined that the program was so deeply classified that the court could not properly evaluate whether it was constitutional, a conclusion that drew sharp criticism from civil liberties organizations.
The case had been filed in 2008 by the Electronic Frontier Foundation (EFF) on behalf of AT&T customer Carolyn Jewel. The lawsuit alleged that the NSA’s warrantless surveillance of American citizens violated the Fourth Amendment and that AT&T had been complicit by routing copies of internet traffic to a secret NSA-controlled facility in San Francisco.
The AT&T Whistleblower and the Evidence Behind the Case
The allegations against AT&T stemmed from a 2006 disclosure by former AT&T technician Mark Klein. Klein revealed the existence of a collection program in which AT&T user metadata was being funneled to the intelligence agency. His documentation described a secret room at an AT&T facility where internet traffic was being copied and redirected to the NSA.
Despite this public evidence, Judge White ruled that the plaintiff could not sufficiently prove she was personally being targeted for surveillance. More significantly, the judge stated that even if such proof existed, “any possible defenses would require impermissible disclosure of state secret information.” The judge himself acknowledged frustration that he could not fully explain his reasoning because of the state secrets constraints.
The State Secrets Catch-22
The ruling created what critics described as a legal catch-22. The EFF’s senior staff attorney David Greene explained that the court agreed with the government’s position that the plaintiffs lacked “standing” to challenge the program because they could not prove the surveillance occurred as alleged. Yet the very reason they could not prove it was that the government had classified the evidence needed to establish standing.
The EFF highlighted the paradox by noting that the court refused to even consider whether the surveillance was constitutional, despite the program having been front-page news for nearly a decade following the Edward Snowden disclosures in 2013.
The Long Road of Legal Challenges to Mass Surveillance
Jewel v. NSA was the EFF’s longest-running case at the time of the ruling. It had originated from an earlier lawsuit, Hepting v. AT&T, filed in 2006 and dismissed in 2009 after Congress voted to grant telecommunications companies retroactive immunity from surveillance-related lawsuits. That immunity vote was supported by then-Senator Barack Obama.
The ruling echoed the 2013 Supreme Court decision in Clapper v. Amnesty International, which similarly found that plaintiffs who had reason to believe they were being surveilled could not meet the evidentiary threshold to bring their case. The EFF vowed to continue the fight, noting that the ruling only addressed upstream internet surveillance and did not cover telephone records collection or other mass surveillance processes also at issue in the case.
EFF deputy legal counsel Kurt Opsahl stated that it would be “a travesty of justice if our clients are denied their day in court over the secrecy of a program that has been front-page news for nearly a decade.”
