Cases and Court:
- Jewel v. National Security Agency (N.D. Cal.).
- In re National Sec. Agency Telecom. Records Litig. (N.D. Cal.).
- Hepting v. AT&T Corp. (N.D. Cal.).
Background:
In the fall of 2001, President Bush signed an Executive Order permitting the National Security Agency to intercept certain domestic communications of American citizens. These interceptions were made without a warrant and without adhering to the procedures set forth in the Foreign Intelligence Surveillance Act. These communications included a substantial amount of Internet traffic.
In 2005, the New York Times revealed the existence of this program. Shortly thereafter, a former AT&T engineer named Mark Klein came forward with evidence that the AT&T facility at 600 Folsom Street in San Francisco contained equipment which handed off AT&T customer communications to the NSA.
Based on that evidence, in 2006, the Electronic Frontier Foundation filed a class action lawsuit against AT&T styled Hepting v. AT&T. The United States intervened, seeking dismissal of the suit on the ground that continued litigation would reveal state secrets and harm national security. AT&T also moved to dismiss. In July of 2006, Judge Vaughn R. Walker of the United States District Court for the Northern District of California denied those motions.1 In 2008, Congress enacted and President Bush signed the FISA Amendments Act of 2008, whose express purpose was to end the Hepting v. AT&T lawsuit by granting immunity to telecommunications companies who cooperated in surveillance activities. It was successful in that aim; Judge Walker granted the government’s motion to dismiss based on that new statute on June 3, 2009.2
Soon after immunity for telecommunications companies became a real possibility, in fall of 2008, the EFF filed a new lawsuit based on warrantless Internet surveillance, this time directly against the government: Jewel v. National Security Agency. In April of 2009, the government moved to dismiss, primarily on the ground that continued litigation would reveal state secrets and harm national security. After oral argument on that motion, the parties were ordered to submit supplemental briefing on the issue of to what extent FISA preempts the common law state secrets privilege. That briefing is ongoing, and the motion to dismiss is currently under submission.
What’s At Stake:
Cyberlaw casebooks and treatises are full of cases dealing with intricate questions of Internet user privacy: what information may or must be provided in response to a civil subpoena, or in response to an informal law enforcement request, or in response to a search pursuant to a warrant. But none of that matters much if the President can simply issue a secret, unreviewable order requiring telecom companies to give the government a copy of every bit that traverses the Internet, without any limits on the uses to which that information can be put.
If dragnet government surveillance is permitted, do citizens cease to have a reasonable expectation of privacy in their Internet communications? Would that open the door to a weakening or elimination of the warrant requirement even in ordinary criminal cases where the Internet is involved? Would we ultimately circle back to one of the original cyberlaw dilemmas—the regulation of encryption technology?
In some ways, Jewel presents a classic cyberlaw problem: what do we do as a society now that the Internet makes possible something that was previously impossibly difficult?
See also:
- Greg Nojeim, Surveillance Program Overly Secret and Its Importance Overblown, PolicyBeta (Jul. 10, 2009).
- Hugh D’Andrade, News Round-Up: Jewel v. NSA Hearing, Deeplinks (Jul. 16, 2009).
- Howard Wasserman, Is retroactive telecom immunity unconstitutional? No, Prawfsblog (Aug. 15, 2008).
Footnotes
- Hepting v. AT&T Corp., 439 F. Supp. 2d 974 (N.D. Cal. 2006). [↩]
- In re National Sec. Agency Telecom. Records Litig., 2009 U.S. Dist. LEXIS 48283 (N.D. Cal. Jun. 3, 2009). [↩]