9th Circuit Judge Questions Consumers' Ability to Sue in Surveillance Cases

It’s questionable whether a consumer could sue over unlawful surveillance if the federal government is always able to claim classified information protections, said 9th U.S. Circuit Court of Appeals Judge Margaret McKeown Monday during oral argument in Jewel v. NSA (see 2004170052).

McKeown questioned the government’s ability to use Foreign Intelligence Surveillance Act Section 1806(f) to protect classified information in surveillance lawsuits. Electronic Frontier Foundation sued NSA in 2008 over an alleged illegal dragnet program EFF says AT&T and Verizon participated in. A federal district court ruled in the government’s favor, saying revealing classified information at issue would threaten national security by giving adversaries a roadmap for surveillance practices.

Under 1806, if there’s classified information, “you could never get out from under the box, right?” McKeown asked DOJ’s attorney Joseph Busa. “A plaintiff could never bring a case because they don’t know.”

Busa noted 1806 isn’t used to determine standing, only to determine the legality of surveillance. Determining standing that way “would provide a road map for foreign adversaries to learn whether or not they have been surveilled. That is extraordinarily dangerous,” he said. Congress and the Supreme Court declined to create such a procedure in 1806(f), which contains “no language allowing it to be used to determine standing.” That would let enemies learn precise channels of closed and open communication, he argued.

Government disclosed to The New York Times AT&T and Verizon's participation, said EFF attorney Richard Wiebe. “It’s no secret to any adversary that AT&T is involved in FISA surveillance,” he said. “AT&T admits it performs FISA surveillance on behalf of the government,” based on ER 911, a transparency report published every six months discussing FISA aid to the government, he said: Those reports are front of mind for adversaries trying to determine what surveillance is carried out. AT&T and Verizon didn’t comment.

The lower court’s state secrets dismissal leaves citizens “powerless to challenge any unlawful mass surveillance programs because those programs always involve secrets,” said Wiebe. Congress says unlawful surveillance claims should be decided on the merits under “the protective shield” of 1806(f), he added: The 9th Circuit should reject government’s state secrets privilege and conclude evidence shows plaintiffs have standing and their Fourth Amendment rights were violated.

Judge Carlos Bea asked if government has “ever publicly and authoritatively stated that they had a dragnet operation.” Wiebe cited Privacy and Civil Liberties Oversight Board reports, which he said detailed the participating companies and the government’s collection of customer data.

Judge Ronald Gould drew attention to the issue of classified information and state secrets protections. Citing an en banc decision in Jeppesen, he asked if dismissal is proper when a defense, on the merits or standing, can't be proven because of an inability to do so without classified information.

“Yes, that’s one of the situations which would require dismissal under the privilege,” said Busa. “The district court here evaluated whether further adjudication of standing would be possible without threatening state secrets and concluded the answer was no.” The plaintiffs have “elaborate” theories about what the client affidavit shows about NSA coming to interview someone about a “special job,” said Busa: “They have nothing but speculation about what was happening inside a particular room inside a particular facility in San Francisco in 2003.”

McKeown noted government claims it never “publicly identified” the service providers involved in the programs. That’s true, except one caveat, said Busa: The U.S. acknowledged one secondary order sent to Verizon for a 90-day period.