Jewel v. NSA
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''Jewel v. National Security Agency'', 673 F.3d 902 (9th Cir., 2011), was a
class action lawsuit A class action, also known as a class-action lawsuit, class suit, or representative action, is a type of lawsuit where one of the parties is a group of people who are represented collectively by a member or members of that group. The class action ...
argued before the
District Court for the Northern District of California The United States District Court for the Northern District of California (in case citations, N.D. Cal.) is the United States federal courts, federal United States district court whose jurisdiction comprises the following counties of California: ...
and the
Court of Appeals for the Ninth Circuit The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * District ...
, filed by
Electronic Frontier Foundation The Electronic Frontier Foundation (EFF) is an international non-profit digital rights group based in San Francisco, California. The foundation was formed on 10 July 1990 by John Gilmore, John Perry Barlow and Mitch Kapor to promote Internet ci ...
(EFF) on behalf of American citizens who believed that they had been surveilled by the
National Security Agency The National Security Agency (NSA) is a national-level intelligence agency of the United States Department of Defense, under the authority of the Director of National Intelligence (DNI). The NSA is responsible for global monitoring, collecti ...
(NSA) without a warrant.''Jewel v. National Security Agency''
673 F. 3d 902
(9th Cir., 2011).
The EFF alleged that the NSA's surveillance program was an "illegal and unconstitutional program of dragnet communications surveillance" and claimed violations of the Fourth Amendment.


Background

In 2006, journalists revealed a widespread warrantless wiretapping operation in the United States, in which government security officials worked with telecommunications firms to surveil the personal communications of citizens under the guise of protecting the country against terrorism. At about the same time, former AT&T engineer
Mark Klein Mark Klein is a former AT&T technician and whistleblower who revealed details of the company's cooperation with the United States National Security Agency in installing network hardware at a site known as Room 641A to monitor, capture and proce ...
revealed that the company had allowed the
National Security Agency The National Security Agency (NSA) is a national-level intelligence agency of the United States Department of Defense, under the authority of the Director of National Intelligence (DNI). The NSA is responsible for global monitoring, collecti ...
(NSA) to install a
NarusInsight Narus Inc. was a Software industry, software company and Independent software vendor, vendor of big data analytics for cybersecurity. History In 1997, Ori Cohen, Vice President of Business and Technology Development for VDONet, founded Narus with ...
surveillance system in its San Francisco switching center (
Room 641A Room 641A is a telecommunication interception facility operated by AT&T for the U.S. National Security Agency, as part of its warrantless surveillance program as authorized by the Patriot Act. The facility commenced operations in 2003 and its ...
), which was capable of monitoring billions of bits of Internet traffic per second, including the playback of telephone calls routed on the Internet, and in effect spying upon the entirety of the communications of many American citizens and businesses who use the Internet.


Litigation history


Initial District Court case

In 2008, the
Electronic Frontier Foundation The Electronic Frontier Foundation (EFF) is an international non-profit digital rights group based in San Francisco, California. The foundation was formed on 10 July 1990 by John Gilmore, John Perry Barlow and Mitch Kapor to promote Internet ci ...
(EFF) initiated a
class action lawsuit A class action, also known as a class-action lawsuit, class suit, or representative action, is a type of lawsuit where one of the parties is a group of people who are represented collectively by a member or members of that group. The class action ...
against the government on behalf of aggrieved citizens, with one named Carolyn Jewel volunteering to be named in the suit. The government moved to dismiss the suit because the plaintiffs could not prove direct personal injury from the surveillance, and thus lacked
standing Standing, also referred to as orthostasis, is a position in which the body is held in an ''erect'' ("orthostatic") position and supported only by the feet. Although seemingly static, the body rocks slightly back and forth from the ankle in the s ...
to sue, while the surveillance program itself could remain confidential under the
state secrets privilege The state secrets privilege is an evidentiary rule created by United States legal precedent. Application of the privilege results in exclusion of evidence from a legal case based solely on affidavits submitted by the government stating that court ...
. The case was first heard at the
District Court for the Northern District of California The United States District Court for the Northern District of California (in case citations, N.D. Cal.) is the United States federal courts, federal United States district court whose jurisdiction comprises the following counties of California: ...
. Judge
Vaughn Walker Vaughn Richard Walker (born 1944) is an American lawyer who served as a United States district judge of the United States District Court for the Northern District of California from 1989 to 2011. Walker presided over the original trial in '' Holl ...
dismissed the suit in January 2010, holding that the plaintiffs lacked legal standing because their claims amounted to a "general grievance" against the government, with no evidence of direct personal injury. The EFF appealed this ruling to the
Ninth Circuit Court of Appeals The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * District o ...
.


Circuit court ruling

On appeal, in December 2011 the Ninth Circuit initially reversed the District Court's dismissal of the complaint and remanded the case back to the lower court to further determine the validity of the government's
state secrets privilege The state secrets privilege is an evidentiary rule created by United States legal precedent. Application of the privilege results in exclusion of evidence from a legal case based solely on affidavits submitted by the government stating that court ...
claim. The case was thus returned to the
District Court for the Northern District of California The United States District Court for the Northern District of California (in case citations, N.D. Cal.) is the United States federal courts, federal United States district court whose jurisdiction comprises the following counties of California: ...
but with few new developments for about the next 18 months.


Subsequent District Court actions

In the meantime, NSA
whistleblower A whistleblower (also written as whistle-blower or whistle blower) is a person, often an employee, who reveals information about activity within a private or public organization that is deemed illegal, immoral, illicit, unsafe or fraudulent. Whi ...
William Binney testified in July 2012 in support of the EFF, claiming that the NSA was "purposefully violating the Constitution". The NSA's
mass surveillance Mass surveillance is the intricate surveillance of an entire or a substantial fraction of a population in order to monitor that group of citizens. The surveillance is often carried out by local and federal governments or governmental organizati ...
program then became a matter of widespread public knowledge upon the revelations by Edward Snowden in June 2013. In July 2013, District Court Judge
Jeffrey White Jeffrey Steven White (born September 2, 1945) is a Senior United States district judge of the United States District Court for the Northern District of California. Early life, education, and career Born in New York City, New York, White recei ...
rejected the government's claim of
state secrets privilege The state secrets privilege is an evidentiary rule created by United States legal precedent. Application of the privilege results in exclusion of evidence from a legal case based solely on affidavits submitted by the government stating that court ...
and allowed the EFF class action suit to continue, further holding that the surveillance program constituted a
search Searching or search may refer to: Computing technology * Search algorithm, including keyword search ** :Search algorithms * Search and optimization for problem solving in artificial intelligence * Search engine technology, software for findi ...
process that in turn required a warrant for each search, per the requirements of the Fourth Amendment. Later in 2013 the court ordered the NSA to explain the perceived impact of the recent Snowden revelations on the ''Jewel'' case and on its general
national security National security, or national defence, is the security and defence of a sovereign state, including its citizens, economy, and institutions, which is regarded as a duty of government. Originally conceived as protection against military atta ...
efforts. In December 2013, the government again claimed the state secrets privilege and declassified documents detailing its process while reaching this decision. The NSA in the meantime was destroying the relevant records, because it was required under the
Foreign Intelligence Surveillance Act The Foreign Intelligence Surveillance Act of 1978 ("FISA" , ) is a United States federal law that establishes procedures for the physical and electronic surveillance and the collection of "foreign intelligence information" between "foreign po ...
to delete any such records after a proscribed period. In March 2014, Judge White imposed a temporary
restraining order A restraining order or protective order, is an order used by a court to protect a person in a situation involving alleged domestic violence, child abuse, assault, harassment, stalking, or sexual assault. Restraining and personal protection or ...
, requiring the NSA to halt the destruction of evidence until a final resolution of the ''Jewel'' case. In June 2014, the EFF requested an emergency hearing requesting that the court enforce the temporary restraining order, after discovering that the government had continued the destruction of evidence. The NSA filed a counter-motion claiming that altering its process of deleting records and revealing the targets of its ongoing surveillance operation would have severe consequences "including the possible suspension of the
Section 702 The FISA Amendments Act of 2008, also called the FAA and Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008, is an Act of Congress that Rescind or amend something previously adopted, amended the Foreign Intelligence Surveilla ...
program and potential loss of access to lawfully collected signals intelligence information on foreign intelligence targets".Jewel v. National Security Agency, Emergency Motion to Stay the Court's June 5, 2014 Order, United States District for the Northern District of California
Case No. 08-CV-4373-JSW
2014.
In February 2015, Judge White dismissed the latest motion by the EFF, accepting the NSA's argument that the requirements placed upon the agency would engender the "impermissible disclosure of state secret information", and he also held that the plaintiffs did not have
standing Standing, also referred to as orthostasis, is a position in which the body is held in an ''erect'' ("orthostatic") position and supported only by the feet. Although seemingly static, the body rocks slightly back and forth from the ankle in the s ...
to pursue their claims. This procedural ruling allowed White to avoid addressing the constitutionality of the NSA's mass surveillance program. Upon the disclosure of more information about the NSA's surveillance methods, the EFF filed another motion in May 2017 requesting that the agency disclose information about surveillance conducted against Carolyn Jewel and the other plaintiffs. Judge White granted this motion and ordered the government to hand over the information. However, the NSA filed a motion in opposition to that order, claiming once again that the plaintiffs lacked the standing to sue. After further arguments, the District Court accepted this argument in April 2019. The EFF appealed that ruling to the Ninth Circuit. In a memorandum opinion, that court ruled in favor of the NSA, once again on the matter of standing. In June 2022, the EFF made a final request to the
U.S. Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
to take the case, but that court rejected the request and did not grant ''
certiorari In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
''.


Impact

The ultimate outcome of ''Jewel v. National Security Agency'' is that the U.S. government was able to avoid the Fourth Amendment implications of its mass surveillance program via procedural arguments about the need to keep its methods secret, while claiming that individual citizens cannot prove direct harm from the program. However, citizens have been unable to demonstrate
standing Standing, also referred to as orthostasis, is a position in which the body is held in an ''erect'' ("orthostatic") position and supported only by the feet. Although seemingly static, the body rocks slightly back and forth from the ankle in the s ...
because the NSA has argued successfully that the evidence needed for that task must remain secret, thus creating a
Catch-22 ''Catch-22'' is a satirical war novel by American author Joseph Heller. He began writing it in 1953; the novel was first published in 1961. Often cited as one of the most significant novels of the twentieth century, it uses a distinctive non-chr ...
situation. This has generated some criticism, because while the NSA's argument could possibly be justified under old evidence-gathering processes, the ''Jewel'' case did not address the much easier collection of personal information enabled by modern Internet and telecommunications technologies.


See also

* '' Hepting v. AT&T'' * Litigation over global surveillance *
Mass surveillance in the United States The practice of mass surveillance in the United States dates back to wartime monitoring and censorship of international communications from, to, or which passed through the United States. After the First and Second World Wars, mass surveillan ...
*
Room 641A Room 641A is a telecommunication interception facility operated by AT&T for the U.S. National Security Agency, as part of its warrantless surveillance program as authorized by the Patriot Act. The facility commenced operations in 2003 and its ...


References


External links


Complaint copy
at EFF website
''Jewel v. NSA''
page at EFF website * {{cite web, url=https://www.eff.org/nsa-spying/timeline, title=Timeline of NSA Domestic Spying, date=November 30, 2012 , publisher=Electronic Frontier Foundation United States privacy case law Privacy of telecommunications United States District Court for the Northern District of California cases Electronic Frontier Foundation litigation Class action lawsuits 2010 in United States case law National Security Agency Mass surveillance litigation