This article was originally published on Electronic Frontier Foundation.
It’s time to lift the cloak of secrecy that has until now shielded the NSA from judicial scrutiny. EFF served the agency with information requests late last week in Jewel v. NSA, EFF’s signature case challenging government surveillance. Since we filed the case in 2008, leaks about government spying—much of which have been confirmed by intelligence agencies—have vindicated our claims that the U.S. government is and was illegally spying on millions of innocent Americans. Now, we are seeking answers to basic questions about the nuts and bolts of the government’s Internet and telephone mass surveillance programs.
Not only does this mark the first opportunity to obtain evidence since the case was filed nearly eight years ago, but it’s also the first time any party has been allowed to gather facts about the programs’ inner workings from the NSA in a case involving the agency’s warrantless surveillance.
It’s unusual for a case to go eight years before reaching this point, called “discovery,” the routine process by which one party obtains evidence to support their case from another party. But we were barred from conducting discovery since 2008 because the government succeeded in putting evidence gathering on hold while it tried to get the case thrown out—thereby preventing us from requesting important information about how the NSA’s mass surveillance programs worked. But the government failed to get the case thrown out. And earlier this year—after a Ninth Circuit judge expressed shock [at 30:03] that discovery had been stayed for so long—U.S. District Court Judge Jeffrey White in Oakland, California, authorized EFF, on behalf of the plaintiffs, to finally seek information from the NSA.
We’ve learned a great deal about the government’s telephone and Internet mass surveillance programs in the past few years, thanks to the leaks of many whistleblowers, including Edward Snowden, the work of investigative journalists, and statements by public officials. But there is still a lot we don’t know about how these programs operate. And in Jewel, the government has convinced the court that the publicly available information does not paint a sufficiently complete picture of how the NSA collects Internet traffic. The court can’t decide whether the program is legal, the government says, with only the information that’s been made public.
Yet, in an absurd Catch-22 move, the government won’t provide any clarification or explanation of its assertions that we are “wrong” on the facts. Instead, the government is sticking with its signature practice of revealing only bits and pieces of how its massive surveillance operations function while actively obscuring how those pieces fit together and issuing carefully crafted denials of our allegations.
We are now seeking answers to some basic questions that will provide enough clarification for a real judicial decision. For instance, we asked the NSA to describe the basic process by which it acquires, copies, filters, and searches Internet communications in transit over the Internet backbone without any warrant or court order authorizing it to do so. We asked the agency to describe how AT&T’s Folsom Street facility in San Francisco fits into its operations, and all the facts on which it bases its conclusion that it would be “impracticable” to get a warrant supported by probable cause before invading people’s privacy. And we asked the agency to provide documentation to support its answers.
We also asked the NSA to admit various facts about both its Internet and telephone mass surveillance programs, and to explain itself should it refuse to make unqualified admissions. For instance, we asked the NSA to admit that it procured from AT&T bulk Internet and telephone call records without any warrant, court order, or subpoena. And we asked the NSA to admit that it procured AT&T to copy, via fiber-optic splitters, all electronic communications at the Folsom Street facility transiting between AT&T’s Internet facilities and the Internet facilities of non-AT&T electronic communications service providers, and that it later searched the contents of those communications.
These are not technical questions about the intricacies of the NSA’s systems. The answers will not add to what the bad guys know in any material way. These are high-level, operational questions about the government’s mass warrantless spying programs—questions for which the public has long deserved answers, and for which the courts needanswers to adequately evaluate whether ours laws have been broken.
Congress should be asking these very same questions. But so far, it has failed to do so. Indeed, in the eight years since Congress enacted reforms to the Foreign Intelligence Surveillance Act (FISA), it has failed to gain a functional understanding of NSA Internet surveillance or to consider its impacts on democracy. It’s clear from a recent hearing that Congress does not even know how many Americans are impacted by Section 702 of the law, which was designed to allow U.S. intelligence services to collect electronic intelligence on foreign targets related to our national security interests but which the government has used to sweep up data on hundreds of millions of people, including countless Americans, who have no connection to a terrorist investigation. Section 702 is set to expire next year, and the complete lack of transparency regarding the government’s use of the law is a key reason why the digital rights community is calling on Congress to let it expire as scheduled.
The government has 30 days to answer our questions, although we expect they will try to delay things. We also expect that the government will try to block our discovery requests entirely by claiming, as it has in the past, that the state secrets privilege protects it against both discovery and liability. Judge White previously rejected that argument for our statutory claims under the Wiretap Act, FISA, the Electronic Communications Privacy Act, and the Stored Communications Act. Any attempt by the government to evoke that privilege here would also be improper and should be rejected.
While we don’t expect to get there without a fight, we look forward to finally getting to the nuts and bolts of this extraordinarily important lawsuit.