July 24, 2021

Judge rejects constitutional challenge to mass Internet surveillance

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white-jeffrey-Article-201401031848By Ross Todd, From The Recorder

SAN FRANCISCO — The federal government scored a major victory on Tuesday, snuffing out a court challenge to the mass surveillance of Americans’ online communications.

U.S. District Judge Jeffrey White of the Northern District of California said a group of AT&T customers who claim all of their Internet communications were swept up in the National Security Agency’s surveillance dragnet hadn’t demonstrated standing to sue under the Fourth Amendment.

White, who has had access to classified briefing from the government, wrote that the plaintiffs’ version of how the data-collection process operates, based largely on an AT&T whistleblower’s account, “is substantially inaccurate.” White stated that the even had the plaintiffs established standing, he would have been forced to dismiss the Fourth Amendment claims since any possible defenses would require government lawyers to disclose state secret information.

Jewel v. NSA, 08-4373, has been championed by the Electronic Frontier Foundation and a coalition of private lawyers. The plaintiffs’ description of the government’s surveillance mechanism relied in large part on the declarations of Mark Klein, a retired AT&T technician who reported that copies of the company’s Internet backbone traffic are routed to a secret room controlled by the government.

In Tuesday’s decision, White found that Klein could not establish “the content, function, or purpose of the secure room at the AT&T site based on his own independent knowledge” and that lawyers challenging the program under the Fourth Amendment hadn’t offered enough admissible evidence to support standing.

“Without disclosing any of the classified content of the government defendants submissions, the court can confirm that plaintiffs’ version of the significant operational details of the … collection process is substantially inaccurate,” White wrote.

Richard Wiebe, who argued the cross-motions for summary judgment for the plaintiffs group in a marathon five-hour hearing late last year, said that he was disappointed with decision and that the classified docket left his side in an awkward position. “The government gets to whisper things in the judge’s ear, things which we never get to see, and never get a chance to rebut. I think that has colored the [outcome],” he said.

Kurt Opsahl, the deputy general counsel for EFF, said in an emailed statement that the judge’s ruling doesn’t end the case. The plaintiffs have remaining claims challenging telephone records collection and other mass surveillance.

“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,” he said.

White wrote in his decision that he was frustrated that he had to decide the standing question without fully disclosing his analysis and reasoning. But the judge wrote that it was “a necessary by-product of the types of concerns raised by this case.”

“The court is persuaded that its decision is correct both legally and factually and furthermore is required by the interests of national security,” he wrote.

IMAGE: U.S. District Judge Jeffrey White, Northern District of California

For more on this story go to: http://www.therecorder.com/id=1202717585942/Judge-Rejects-Constitutional-Challenge-to-Mass-Internet-Surveillance#ixzz3SP8aM59i


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