Jewel v. NSA: On to the Ninth Circuit: 2019 Year in Review – EFF

Jewel v. NSA, EFFs landmark case challenging NSAs mass spying moved forward in 2019, setting up a crucial decision for the Ninth Circuit in 2020. Weve pursued this case for over a decade because we believe that mass surveillance, like all general search and seizure schemes, is both illegal and unconstitutional. The case arises from general seizures and searches conducted through three NSA surveillance programs: the NSAs current Upstream tapping of the Internet backbone, its past actions collecting Internet metadata and its discontinued mass telephone records collection, purportedly authorized by section 215 of the Patriot Act. Congress just shamefully kicked debate on reauthorization of section 215 until March, 2020, even though it was stopped in 2018 after concerns of massive overcollection by the secret FISA Court and has never helped catch a terrorist.

In 2019, we had bad news and good news on the litigation front.

The bad news came in April, when the District Court ruled that, despite the enormous amountof direct and circumstantial evidence showing our clients communications likely swept up by the NSA dragnet surveillance to establish legal standing,no public court can rule on whether this surveillance is legal. The Court agreed with the government that our claims were caught in a state secrets privilege Catch-22: no one can sue to stop illegal surveillance unless the court first determines that they were certainly touched by the vast surveillance mechanisms of the NSA. But the court cannot decide whether any particular persons email, web searches, social media or phone calls were touched by the surveillance unless the government admits it which the government will not do. This circular ruling matched an earlier ruling by the District Court under the Fourth Amendment, and, at long last, set both of these rulings up for review by the Ninth Circuit Court of Appeals.

We made three key arguments in our opening briefs, filed in September:

We didnt go to the Ninth Circuit alone, though. In early October six amicus briefs were filed in support of our case:

The governments responsive briefs are due in early December, with our final briefs likely due in January. Were hopeful that the Ninth Circuit will recognize the importance of the case and hold a hearing in the Spring.

This article is part of our Year in Review series. Read other articles about the fight for digital rights in 2019.

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Jewel v. NSA: On to the Ninth Circuit: 2019 Year in Review - EFF